text:
    State, to use of Howard’s Administrators, Defendants in Error, v. Rollins et al., Plaintiffs in Error.
    1. Where a county collector advances to the treasury the whole amount of taxes chargeable against him as collector, and dies before the expiration of his term of office with a portion of the taxes delinquent, his successor in office is not bound, in Ms official capacity as collector, to collect such delinquent taxes for the benefit of the representatives of the deceased collector. He could not be held liable on his official bond for collecting and not paying over such delinquent list. If he should collect the delinquent list of his deceased predecessor, it would be as agent and not in his official capacity as collector.,
    2. The representatives of a deceased collector, who had made an advance of the taxes to the treasury, have a lien for the delinquent taxes, as provided by the fifty-fifth section of the third article of the revenue act of November 23, 1857, (Sess. Acts, 1857, Adj. Sess. p. 91.)

      jError to Moniteau Circuit Covert.

    The facts sufficiently appear in the opinion of the court.

      Parsons Sf Ewing, for plaintiffs in error.
    I. The court erred in overruling the demurrer. Howard, having paid the tax of the state, was substituted in place of the state, and had a year from that time to collect the money in. He was collecting for himself, not for the state ; he was not accountable to the state for what he collected. His legal representatives were entitled to the same as assets of his estate. They had a right to employ agents to collect the same. They authorized Rollins to colleet the unpaid taxes. Howard’s administrators have a right to sue. But the collector and his securities are responsible on his official bond only for his official acts. This suit is on the bond. It can not be maintained.

      Douglass 8f Hayden, for defendants in error.
    I. Rollins, as collector, was entitled to the possession of the tax-book. The administrators of the deceased collector were compelled by law to hand over the tax-book at once to the successor. It being in the legal possession of Rollins, the administrators of the deceased collector could not collect the taxes. The law, then, contemplates that the successor of a deceased collector shall collect the taxes advanced to the state treasury. The law requiring him to collect, he is responsible on his official bond if he fail to pay them over to the persons entitled to receive them. The taxes were collected by Rollins colore officii. (24 Mo. 552; 13 Mo. 437 ; 11 Mo. 447; 17 Mo. 486.)
   Ewing, Judge,

delivered the opinion of the court.

This was an action against Rollins and his sureties on his official bond as collector of Moniteau county. The petition alleges that Howard, the predecessor in office of Rollins, was elected in 1856, and died in February, 1858, having paid to tlie state, in December preceding, the whole amount of revenue with which he stood charged — the amount so paid having been advanced by him, for which he had the statutory lien on the property chargeable with the taxes; that Rollins was appointed in March, 1858, to fill the vacancy, to whom plaintiffs shortly thereafter delivered the tax-book which had been received by 1ns intestate, showing the sum of $1,075.46 uncollected state taxes, who executed his receipts therefor. The petition then avers the collection of the taxes by Rollins and a breach of his bond in the usual form, in failing to pay the same to plaintiffs. There was a demurrer to the petition, which being overruled, defendants filed their answer, to which there was a replication; whereupon there was a trial by a jury, and verdict and judgment for plaintiffs. Motions for new trial and in arrest of judgment being overruled, defendant brings the cause here by writ of error.

The only material inquiry arising upon the record. is whether, upon the state of facts set forth, the petition shows any cause of action, and whether the court erred in overruling the demurrer. To sustain the petition we are cited to certain provisions of the revenue law which require the legal representatives of a deceased collector to hand over to his successor the tax-book in certain cases. (Acts 1857, Adj. Sess. p. 101, art. 6.) The fifth section provides that when any collector shall die after he has received the tax-book for any year, his legal representatives shall hand over at once to his successor, as soon as he is appointed and qualified, the tax-book, and shall also pay over at once out of the estate all moneys which have been collected by the deceased collector, and in his hand. The sixth section requires receipts to be executed by the new collector for the tax-book and for the amount of taxes collected by the deceased collector, one of which is to be delivered to the executor or administrator of the deceased collector, another to be filed with the clerk of the county court, and the third to be certified by the clerk to the auditor, who shall charge the new collector with the balance of the state taxes due on the tax-boolc. Section 55 of the third article says that every collector, who shall pay into the treasury the full amount of the state tax on the book on or before the day prescribed, shall have the same lien upon the property chargeable with the taxes advanced by him as the state would have if the taxes remained unpaid, and may proceed to collect the same for one year after such payment into the treasury in the same manner as other taxes are collected, notwithstanding the appointment of another collector, (p. 91.)

Was it the duty of the new collector Rollins to proceed and collect the taxes,’ the whole amount of revenue due the state having been paid by his predecessor before his death and the delivery of the books to him ? If it was, then the averments of the petition show a good cause of action against him and his sureties. It is conceded that there was nothing due the state, and that if there was any cause of action it was in favor of the legal representatives of the former collector alone; and it is contended that a lien in such cases is given to the representatives of the deceased collector in con-sideration of the revenue having been paid out of his private funds, and that it becomes a part of the official duty of the ¡new collector, under the law, to collect these taxes for the benefit of his predecessor’s estate. I do not think this view is sustained by the provisions of the statute to which we have been ¡referred. This lien is given, in all cases, as well to collectors whose terms of office expire by limitation, as to the representatives of those dying before the expiration of the term. And it is obvious and could not be pretended that in the former class of cases the new collector and his sureties would be liable on his bond or otherwise for any unpaid balance of taxes that might be due his predecessor. The tax-books need not and are never in such cases delivered to the new officer as such. If he takes them at all, it is as a matter of private arrangement, and in doing so acts merely as the agent of the former collector for whom he undertakes to ¡collect the unpaid taxes for a stipulated compensation, as he would iii any other private transaction. He is not the agent or officer of the state. He performs no duty as an officer, because the state has no interest in the matter, and does not require him to collect the debts of her citizens in which she has no concern. There being no duty, there arises no obligation or liability.

The judgment is reversed;

the other judges concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Dutcher, Defendant in Error, v. Hill, Plaintiff in Error.
    1. In proceedings under the act relating to insane persons to subject the person and estate of an alleged lunatic to control of a guardian and the county court, the alleged insane person should have notice of the proceedings, or the county court should cause him to he brought before the court, or it should appear upon the record of such proceedings why such notice was not given or such attendance required.
    2. Where a guardian of an insane person has been appointed by a county court, and the guardian has under the sanction of the court sold the land of such insane person, the validity of this sale can not be called in question in a collateral proceeding on the ground that notice of the inquisition was not given to the alleged lunatic.
    8. Where a guardian of an insane person has been appointed by the county court, and the lunatic afterwards applies to the court to be relieved from, the custody of the guardian on the ground that he has been restored to reason, this will be taken as an admission that the proceedings against him were valid, and he can not afterwards object in a collateral proceeding that the inquisition was irregular and void for want qf notice to him.

      Error to Moniteau Circuit Cowt.

    This was an action in the nature of an action in ejectment for the possession of certain lands in Moniteau county. The plaintiff is Charles Dutcher. The defendant claimed title by virtue of a deed executed by one Reuben Dutcher as guardian of the plaintiff. The defendant read in evidence the proceedings of the county court upon the inquisition into the sanity of the plaintiff, and the sale of the land. It did not appear that Charles Dutcher had notice of the inquisition. In all other respects the proceedings were regular, and the sale was regular and bad the sanction of the county court. It was in evidence that after this sale and before the institution of this suit, Charles Dutcher, the plaintiff, had in due form of law been declared of sound mind, and restored to the management of his own affairs.
    The defendant asked the court to give the following declaration of law: “ Although the plaintiff may not have had notice of the proceedings had in the probate court of Moni-teau county, by which he was declared of unsound mind and incapable of managing his own affairs, still, if said proceedings were regular in all other respects, the finding of the court ought to be for the defendant.” The court refused so to declare; there were no other instructions asked. The court found a verdict for the plaintiff.
    Parsons, for plaintiff in error.
    I. No notice was required. (1 Ashm. 82; Southcote’s case, 1 Ambl. 112; Ex parte Hall, 7 Yes. 264.) The court should have given the instruction asked.

      Ross cSp Ewing, for defendant in error.
    I. The proceedings declaring Charles Dutcher an insane person are void for want of jurisdiction. There was no notice given. Notice must be given in all judicial proceedings. (See Blackwell on Tax Titles, 251.) The notice must appear by the record. (20 Mo. 238; 14 Mo. 88; 7 Mo. 463.) The validity of the proceedings can be questioned collaterally. (10 Mo. 771; 1 Burr. 447; 3 Denio, 595; 3 Ala. 287; 2 Engl. 390 ; 15 Wend. 374.) The court properly refused the instruction. (See Eddy v. The People, 15 Ill. 386; Chase v. Hathaway, 14 Mass. 222; 1 Barb. Ch. 39 ; 2 Hoffm. Ch. Pr. 253; 4 Mason, 121.)
   Scott, Judge,

delivered the opinion of the court.

The plaintiff was found to be a lunatic under the statute concerning insane persons. A guardian was thereupon appointed for his pei’son and estate, who, proceeding in conformity to law, procured an order for the sale of the real estate of the lunatic for the payment of his debts. His land was accordingly sold and conveyed by the guardian, whose proceedings were approved. This suit is brought by the lunatic to recover a portion of the land thus sold. It is an action of ejectment, and is founded on the ground that there was no notice to the lunatic of the inquisition by which he was found such.

The statute is silent on the subject of notice to the lunatic; but directs that, in proceedings under it, the county court may, in its discretion, cause the person alleged to be of unsound mind to be brought before the court. Whether this provision is a substitute for the notice and was designed to leave it to the discretion of the court whether the alleged lunatic should have notice and should be present at the making of the inquisition, we will not determine, as on any construction of the statute we are of opinion it should appear from the proceedings why the notice was not given, or the attendance of the person of unsound mind required. On general principles, persons should have notice of proceedings in courts by which their rights are to be affected, otherwise those proceedings will not bind them. Judgments rendered without notice are not binding. If the regularity of these proceedings had been questioned in a direct proceeding, no doubt it should have been corrected; but after considerable examination we have not been able to find a single case in which it has been held that the validity of a sale of the land of a supposed lunatic made by his guardian can be attached in a collateral proceeding on the ground of the want of notice of taking the inquisition by which the supposed lunatic was found to be such. The cases of Willis v. Willis, 12 Penn. State, 159, and of Bethea v. McLemon, 1 Iredell, 523, on the contrary, maintain that the want of such notice can not be taken advantage of in a collateral action. These cases do not appear to have been determined with reference to the local laws of those states, but on general principles. This case is an attempt to carry further the principle, that a judgment against a party without notice is void. Here an irregularity occurred in appointing an agent, trustee, or officer, of which advantage might be taken by appeal or writ of error. After his appointment, the agent instituted proceedings in conformity to law to have an estate sold, which was sold accordingly. Now the party affected by the improper appointment of the agent would have the proceeding for the sale of the land declared null and void, to the injury of an innocent purchaser, although that proceeding in itself is all regular, and its imperfection grows out of a matter entirely collateral to it.

The proceedings under the law concerning insane persons are not like a final judgment, which is unalterable after the end of the term at which it was rendered. They are in fieri, like a cause pending; and irregularities in them, or defects of the record, may be obviated at any time so long as the lunatic is under the control of the guardian appointed for him. It was competent to the court to discharge the lunatic at any time from the care and custody of his guardian, so soon as it was informed of the irregularity of the proceeding. If, instead of demanding to have the proceedings set aside by reason of their irregularity, by which the record might have been amended so as to show' that there was no cause of complaint, the plaintiff came into court and asked to be relieved from the custody of the guardian appointed for him on the ground that he had been restored to his reason, he thereby made a solemn admission of record that the proceedings against him were valid, and he should not now be permitted to say that they were otherwise, and thus take advantage of his neglect to object to the proceedings, when, if the objection had been made, the record might have been amended so as to remove the ground of his complaint. And this argument answers the objection that the plaintiff had no notice of the proceedings so that he could not appeal or take a writ of error. For, although he did not appear until after the land had been sold, yet, when he did appear, he acknowledged the validity of the proceedings under which it was sold; and having obtained the advantage he proposed by this admission, he should not now be permitted to retract it, to the prejudice of an innocent purchaser. '

If all the proceedings in relation to the lunatic are looked upon as composing one record, as they should be, we can not say that upon that record the plaintiff can now sustain an objection to the regularity of the inquisition.

Judgment reversed.


author: Ewing, Judge,

text:
    Ham, Plaintiff in Error, v. Hill, et al., Defendants in Error.
    1. A. and B. were partners. A., transferring his interest to B. and retiring from the firm, took from the latter a hond of which the following is the condition : “ Whereas the said B. having purchased the interest of the said A. in the firm of ‘A & B.’ in the carriage business in the city of B., Mo., and has agreed with the said A. to assume all partnership liabilities of said firm incurred between April 1, 1858, and July 1, 1858, and to pay the same whenever payment is demanded legally by the creditors of said firm; now if the said B. shall observe and keep said agreement and pay said debts in manner and form above prescribed, then this bond to be void, otherwise to remain in full force and virtue.” Held, that this was not merely a bond of indemnity to A.; that the obligation thereby created was not contingent upon A.’s being compelled to pay, or his actually paying, to the creditors of the firm the debts embraced within the bond; that a right of action on the bond accrued to A. so soon as B. failed to pay those debts on demand of the creditors.
    2. The measure of damages in such case, it seems, would be the amount of the debts provided for in the bond; upon a proper showing, however, the court might give judgment in. such form as would make the defendant safe in paying the judgment.

      Error to Cooper Circuit Court.

    The following is the entire bond sued upon: “ Know all men by these presents, that we, John H. Hill, as principal, and William B. Short and George Stucker, as securities, are held and firmly bound unto James R. Ham in the just and full sum of fifteen hundred dollars, for the just and full payment' whereof we bind ourselves5 our heirs, administrators and assigns firmly by these presents. Upon condition, however, that, whereas, said John H. Hill having purchased the interest of the said James R. Ham, in the firm of Ham & Hill, in the carriage business, in the city of Boonville, Missouri, and has agreed with the said Ham to assume all partnership liabilities of the said firm incurred between the first day of April, 1858, and the first day of July, 1858, and to pay the same whenever payment is demanded legally by the creditors of said firm; now if the said Hill shall observe said agreement and pay said debts in manner and form above prescribed, then this bond to be void, otherwise to remain in full force and virtue. Witness our hands and seals this 5th day of July, 1858. [Signed] John H. Hill (seal), Wm. B. Short (seal), George Stucker (seal.)”
    The debts with respect to which defendant was alleged to be in default amounted, as set forth in the petition, to $495.67 and interest. Plaintiff claims damages to the amount of six hundred dollars.

      Stephens 8f Vest, for plaintiff in error.
    I. The bond sued is not a bond of indemnity. It is a bond to do a specific thing, that is, to pay certain debts of the firm of Ham & Hill. The failure of defendant to pay these debts, when payment thereof was legally demanded, was a breach of the bond, and entitled plaintiff to his action. (See 5 Johns. 42; 20 Johns. 161; 3 Cow. 832; 16 Pick. 241; 26 Yerm. 61.)
    II. The plaintiff can recover not only nominal damages but' the full amount of the debts which defendant failed to pay. (See Sedgwick on Dam. 321; Post v. Jackson, 17 Johns. 238 ; Thomas v. Allen, 1 Hill, 145 ; 17 Johns. 479; 7 Wend. 499; 7 B. Monroe, 307; 3 Bibb, 197; 7 Dana, 170; 15 Wend. 503; 9 Mees. & W. 656; 8 Mod. 33; 7 T. R. 97.)

      Douglass Sf Hayden, for defendants in error.
    I. The bond sued on was a bond of indemnity. It was given to protect the obligee against the payment of the partnership debts. It was for the benefit and protection of the plaintiff alone. It did not affect the liability of either partner to the creditors of the firm. It did not release plaintiff from existing liabilities, nor, so far as creditors are concerned, did it add to the obligation of Hill' to pay them. The true sense and meaning of the bond was .to save plaintiff harmless. (See Hardcastle v. Hickman, 26 Mo. 475.) The petition states that Hill has refused to pay. Why has he refused ? It may be that the notes were fraudulently obtained or there was a failure of consideration, or that he had a set-off. If he has such a defence, shall he not have an opportunity to establish it? If plaintiff recovers, he may appropriate the money to his own purposes, and leave the partnership debts unpaid. If he be insolvent, the creditors can not coerce the money from him. Defendant may be compelled to pay the debts twice. A recovery by plaintiff would impair defendant’s ability to pay the creditors.
    II. The bond is a penal bond, but the penalty is not the measure of damages. The obligee can recover only such damages as he has actually sustained — actual compensation for positive loss. (Sedgw. on Dam. —.) The only way in which plaintiff can show that he has sustained loss is by showing that he has been compelled to pay the debts provided for in the bond, or a portion of them. The measure of damages will be the amount so paid. There is no cause of action. There is no averment of payment, and he must pay to recover. The demurrer was properly sustained. (10 Mo. 19; 17 Mo. 41; 15 Mo. 421.)
   Ewing, Judge,

delivered the opinion of the court.

This was an action on a bond executed by the defendant Hill to the plaintiff — who had been copartners in the carriage business — containing the following condition: “ That whereas the said John H. Hill having purchased the interest of the said James R. Ham, in the firm of Ham & Hill, in the carriage business, in the city of Boonville, Missouri, and has agreed with the said Ham to assume all partnership liabilities of the said firm incurred between the 1st day of April, 1858, and the 1st day of July, 1858, and to pay the same whenever payment is demanded legally by the creditors of said firm : Now if the said Hill shall observe and keep said agreement and pay said debts in manner and form above prescribed, then this bond to be void, otherwise to remain in full force.” The petition alleges, as breaches of said bond, the failure of the defendant to pay certain debts of the firm, which are particularly specified in the petition, accruing within the period mentioned in the bond, payment of which had been legally demanded ; and that suit had been brought against the plaintiff by the creditors of the firm to recover said debts. There was a demurrer to the petition, which being sustained, the cause is brought to this court by writ of error.

The question for our consideration is whether a right of action accrued on the bond upon the failure of the defendant to pay the debts it provides for according to its stipulation; or is it a bond of indemnity merely ? We think it is clearly to be collected from the terms of the instrument in suit that it was not the intention merely to secure the plaintiff against actual loss or damage, or that it created an obligation which was contingent upon the payment by the plaintiff of the debts it provides for. It is a bond with an affirmative covenant to do a certain thing; the defendant thereby bound himself to take the place individually of the firm, and discharge debts for which it was liable, and which, as it respects the parties themselves, became by the bond the individual debts of the defendant. Although the legal liability of the firm to its creditors is not changed by the instrument, yet, as to these firm debts, it creates the relation of creditor and debtor between the plaintiff and defendant, and the assump-sit by the defendant is equivalent to a direct- promise to pay money to the plaintiff. In promising to pay debts for which as a firm they were jointly liable, the defendant thereby incurred an obligation which was violated, and for which a right of action accrued to the plaintiff when he failed to pay them on demand of the creditors. If A. for a sufficient consideration enter into a covenant with B. to pay the creditor of B. a given, sum at a specified time or when it should be legally demanded, there could be no doubt of the meaning and legal effect of such an instrument, and that the default of A. to pay at the time agreed upon would give B. an immediate right of action, without waiting until he had made payment of the debt. The case before us and the one supposed are not distinguishable. In the former, the obligor assumes, for the consideration therein expressed, all the partnership debts accruing within a given period, and expressly agrees to pay them whenever payment is legally demanded.

The distinction between bonds of indemnity and covenants to perform a particular act, is well illustrated by the authorities cited by counsel for the plaintiff, and fully sustain our view of the nature and effect of the covenant in this case. In the case of Holme v. Rhodes, 1 Bos. & Pul. 640, the suit was on a bond with a condition that the obligor, who was principal on an obligation to pay money to a third person in which the obligee was surety, should pay the debt by a certain time and thereby acquit the obligee; the defendant pleaded non damnificatus. This plea was held to be no answer to that part of the condition by which the defendant undertook to pay the sum for which "the obligee was bound. In a note to Cutter v. Southern, 1 Saund. 117, Sergeant Williams states the rule to be, that in all cases of conditions to indemnify and save harmless, the proper plea is non damni-ficatus. This plea, however, can not be pleaded, where the condition is to discharge or acquit the plaintiff, for there the defendant must set forth the special manner of performance. But it is otherwise where the condition is to acquit plaintiff from any damage by reason of such bond or other particular thing, for that is in truth the same thing as with a condition to indemnify and save harmless. Loosemore v. Radford, 9 M. & W. 656, is an instance of the application of the principle in a suit by a surety against the principal on his covenant to pay the amount for which they were jointly liable on a given day, in which it was held that the right of action accrued on default of paying at the specified time and for the full amount. Post v. Jackson, 17 John. 238, which was affirmed on error (ib. 480) sustains the view we have taken of, the instrument sued on, both as it respects plaintiff’s right of action upon it before payment of the debts, and also as to the rule of damages he contends for. In that case the plaintiff was a lessee of certain premises and had covenanted to pay the rent; he assigned to the defendant, who covenanted with the plaintiff that he (defendant) would perform the plaintiff’s covenants in the original lease to him. The averment was that rent of a given amount was in arrear and due and unpaid to the original lessee. The covenant was held not to be a mere covenant of indemnity. The Chancellor drew a distinction between an undertaking to acquit and discharge from any damage by reason of the bond and a covenant to do an act in discharge of the plaintiff from such bond or covenant, and remarks that it would be a perversion of the plain sense and language of the covenant in that case to turn it into a mere covenant to indemnify.

In Thomas v. Allen, 1 Hill, 146, the principle of Post v. Jackson is recognized and applied to a case where a bond was given conditioned to pay plaintiff a sum of money by satisfying a bond and mortgage executed between three persons, and to save the plaintiff harmless. The breach assigned was that the sum agreed to be paid was due and payable on a specified day on the bond and mortgage, and that the defendant had not paid or satisfied the same. On a demurrer that this was a bond of indemnity and that the breach did not show the plaintiff to have been damnified, it was held that the instrument was more than a bond of indemnity and that the breach was well assigned by showing that the debt was not paid at the day. In the matter of Negus, 7 Wend. 503, there was a covenant among others by one partner to another to pay the debts of the firm, and also to indemnify tbe obligee. In answer to the objection that it was simply a bond of indemnity and that therefore the obligee mnst have shown that he had been damnified by the payment of debts which the obligor assumed to pay, the court observes that, although a covenant to indemnify followed the covenant to pay the debt, it did not alter the force and effect of the proceeding ; that the covenant to pay the debts was an affirmative covenant to do a certain thing — to pay certain sums of money, and that it was no defence to the action to say the plaintiff had not been damnified. If the condition of the bond stipulates for the performance of any particular act, performance of that act must be averred, and in an action on such a bond non damnificabas is not a good plea. (Combs v. Newton, 4 Black. 121; 20 John. 161; see also Woods v. Rowan & Coon, 5 Johns. 43; 3 Cowen, 332.)

As to the measure of damages in this case, if the plaintiff is entitled to recover, we see no reason why he should not recover the sum due by the bond.' Of course, if the bond has been paid in part, or otherwise satisfied, the defendant will be entitled to the benefit of such payment or satisfaction. The presumption is that the plaintiff gave full consideration for the bond, and if it is not discharged the defendant should pay the amount of it. The defendant being a copartner and liable to partnership creditors, notwithstanding his bond to the plaintiff, if the situation of the plaintiff is such or if there are any circumstances that would make it just to do so, the court, on the trial, would, in rendering judgment, see that the defendant was made safe in paying the judgment; or it might be a ground for an injunction and relief in equity.

The judgment will be reversed and the cause remanded;

the other judges concurring.


author: Napton, Judge,

text:
    Mahan, Plaintiff in Error, v. Scruggs, Defendant in Error.
    1. If the defendant in an execution, a head of a family, have none of the articles of property enumerated in the first and second clauses of the twelfth section of the act regulating executions, (E. C. 1855, p. 738,) he may select and hold exempt from execution, under the thirteenth section of said act, any other property not exceeding in value one hundred and fifty dollars.
    2. If he have a portion only of the articles enumerated in said first and second clauses of the twelfth section of said act, he may select them as exempt under the twelfth section, and he may also, under the thirteenth section, select, in addition, other property, which, together with that selected under the twelfth section, will not exceed in value one hundred and fifty dollars.

      Error to Cole Circuit Court,

    This was an action to recover damages against a constable for failing to make the money on an execution. Mahan, the plaintiff in this suit, obtained a judgment against one Williams. Upon this about sixty dollars were due. The constable garnished a debt due Williams for eighty dollars. He also levied upon a horse valued at sixty dollars, and some other personal property, all of which, including the horse when appraised, did not amount in value to one hundred and fifty dollars. The constable advised Williams that he had a right to elect and take property of the value of one hundred and fifty dollars. Whereupon he demanded and received of the constable the debt garnished, the horse and the remainder of the personal property, all of which, as appraised, amounted in value to less than one hundred and fifty dollars. The court refused to declare the law, as requested by the plaintiff, as follows: “ Under the act concerning executions, the defendant in the execution could not hold and claim exempt from execution his horse and also the debt that was garnished.” The court found and rendered judgment for the defendant.

      White, for plaintiff in error.
    I. The court erred in refusing the instruction asked and in rendering judgment for defendant. A party must give up all the articles mentioned in the first and second subdivisions of the twelfth section if he wishes to take advantage of the thirteenth section.
    Parsons, for defendant in error.
    I. The instruction was properly refused. Williams had the right to select and hold the horse and money garnished exempt from execution. The defendant in an execution has the right to select property under the twelfth section, and if it does not,, amount to one hundred:and fifty dollars in value, he may select and make up the deficit under the thirteenth section.
   Napton, Judge,

delivered the opinion of the court.

The case turned altogether upon the construction of the twelfth and thirteenth sections of the act concerning executions.

The last eight clauses in the twelfth section provide for exemptions which are independent of circumstances, and present no difficulties of construction. The first two clauses exempt ten hogs, ten sheep, two cows and calves, one plough, &c., and work animals to the value of sixty-five dollars. Then the thirteenth section provides that in lieu of the property mentioned in these two clauses, the defendant may select “any other property, real, personal'or mixed, or debts and wages not exceeding in value one liundred and fifty dollars.”

Where the defendant does not select any of the articles enumerated in the two clauses of the twelfth section just referred to, it is plain that, under the thirteenth section, he may select other property to the value of one hundred and fifty dollars. So far as this is concerned, there could be no difference of opinion; but if the defendant selects any one of the articles enumerated in the two first clauses of the twelfth section, the question is, whether that debars him from any benefit of the thirteenth section. And this question, it must be acknowledged, is not so easy to answer, as the strict letter of the thirteenth .section and the general scope of the two sections do not altogether correspond. According to a literal construction of the thirteenth section, no provision is made for a case where the defendant retains a part only of the articles enumerated in tlie two first clauses Of the twelfth section. When he selects all under the twelfth section he is clearly not entitled to any under the thirteenth, as the one is in lieu of the other.

But we think the equity of the law will reach a case like the present, and we believe the decision of the circuit court to be in conformity to the practical construction given to the law throughout the state. What motive could induce the legislature to diminish the amount of exempted property as the owner became poorer ?. We must consider the general policy of these laws. The law provides that if a defendant owns a horse worth sixty-five dollars, and ten sheep and ten hogs, and two cows and calves, and other specified property, altogether about of the value in money of one hundred and fifty dollars, he may retain all this property; or, if he has none of this enumerated property, and has other property or choses in action to the amount in value of one hundred and fifty dollars, he may retain the other property. In either of these cases, the law clearly allows him one hundred and fifty dollars in property, which the law specifies, or which he himself selects. But if the defendant has none of the property enumerated in the two clauses of the twelfth section, except a horse worth sixty-five dollars, and all his other property is less than the difference between sixty-five and one hundred and fifty dollars, was it the intention of the law to put the defendant to an election between the horse and the other non-enumerated property, when both together would fall short of the hundred and fifty dollars ? It is not easy to see a motive for such a discrimination, and yet such would be the effect of the law if interpreted as the appellant insists on. Undoubtedly this is a literal interpretation of the law, but may we not apply the language of the thirteenth section disbributively to each enumerated article of property as well as to all the property therein mentioned collectively ? By so doing we conform to what we believe is tbe general understanding in the country, that one hundred and fifty dollars’ worth of property is exempt from execution, in addition to the exemptions specifically mentioned in the eight latter clauses of the twelfth section; and this amount of property in value may be taken either by selecting the articles and stock enumerated in the first and second clauses of the twelfth section, or by taking one hundred and fifty dollars’ worth of other property, or by taking such of the articles or stock specified in the first and second clauses of the twelfth section as he may have, and other property or dioses in action not mentioned in these clauses, which, together with what has been selected under the twelfth section, will not exceed in value one hundred and fifty dollars. This construction of the act seems to promote the policy which the law has in view, although the third contingency above mentioned is not literally provided for. After some hesitation we have concluded that it is within the equity of the statute, and shall therefore affirm the judgment of the circuit court.

The other judges concur.


text:
    Turner, Plaintiff in Error, v. Franklin, Defendant in Error.
    1. If a rate-bill and warrant issued by a board of school trustees under the twelfth subdivision of the fourth section of the fifth article of the act providing for the organization of schools (R. C. 1855, p. 1437) be regular and valid upon its face, the constable will be protected in executing it; he is not obliged to examine into the validity of those acts of the board of trustees upon the basis of which the warrant and rate-bill are issued.

      Error to Miller Circuit Court.

    This was an. action originally commenced before a justice of the peace to recover damages for a wrongful levy upon and sale of a horse. The defendant justified the alleged trespass, setting up that he made the levy and sale under and by virtue of a warrant and rate-bill issued by a board of school trustees. The plaintiff offered to show that by agreement the property of certain persons was not taxed; that they voted for the levy of the tax. This was excluded. Plaintiff also offered to prove that notice of the meeting was not given as required by law; that a majority of the qualified voters in the district did not vote to levy the tax. This also was excluded. There was evidence tending to show that the defendant made a demand as constable of the tax levied against plaintiff.
    The following instruction asked by the plaintiff was refused : “ If the defendant only exhibited his rate-bill and did not demand the tax of the plaintiff, defendant could not lawfully sell said property under said rate-bill; and in the absence of such demand the jury will find for the plaintiff the value of his said mare.”
    The court, at the instance of the defendant, gave the following instruction: “If the jury find from the evidence that the defendant sold plaintiff’s mare under and by virtue of the rate-bill read in evidence, and that before such levy and sale he demanded of the plaintiff the amount assessed against him, and plaintiff refused to pay the same, the jury will find for the defendant.”
    The plaintiff took a non-suit, with leave, &c.

      Parsons Sf Eiving, for plaintiff in error.
    I. The court erred in admitting the rate-bill and record of the trustees as evidence of the statements contained in them. The rate-bill was no legal authority like an execution. The law must be strictly complied with that authorizes the issuing of the rate-bill. The assessment and consequently the rate-bill is absolutely void, the law not having been complied with. The constable, the law not having been complied with, is liable as a trespasser. (Sayre v. Tompkins, 23 Mo. 445 ; Atchison v. Amick, 25 Mo. 407; R. C. 1855, p. 1436, § 4.) The court should have admitted the testimony offered by plaintiff tending to show that the law had not been complied with, and have granted the instruction asked. A presentation of the rate-bill is not sufficient. (25 Mo. 407.) The court erred in giving the instruction asked. The rate-bill is not conclusive evidence of the statements in it, nor that the law has been complied with. No sufficient demand was proved.
   Napton, Judge,

delivered the opinion of the court.

The fourth section of the fifth article of the act regulating common schools, among other duties and powers entrusted to the trustees of a school district, requires them “ to make out a rate-bill, containing the name of each person patronizing such school, and not exempted [from rate-bill,] and the amount for which such person is liable, adding thereto five cents on each dollar for collector’s fees, and to annex thereto a warrant .for the collection thereof, directed to the constable of the township, whose duty it shall be to receive and collect the same.” The eighth section of the seventh article makes it the duty of the constable “ to collect the amount, due on these rate-bills or warrants, from the persons against whom such warrants or rate-bills have been issued; and upon failure on the part of such persons to pay the amount so due, to levy upon the personal property of the person so failing or refusing to pay the amount so due, and the said constable shall proceed to sell the same,” &c. (R. C. 1855, p. 1441.) The ninth section of the same article makes the constable and his securities liable, for any failure to execute or return these rate-bills, to the same extent and in the same manner “ as though such warrant were an execution issued by a justice of the peace.”

So far as the constables are concerned under this school law, them responsibility in reference to rate-bills or-warrants is declared by the act to be precisely the same as the law already had fixed it in reference to executions issuing from justices’ courts; and it would seem to be a natural consequence of this responsibility that the writ should protect them in their obedience to its mandates. There can be no question as to the executions, where they are valid on their face. The officer has no right to look into the record of the suit or examine the validity of the judgment; his duty is simple obedience to the mandates of the writ, and if the writ on its face shows the jurisdiction of the court from which it is issued, the officer is protected in executing it.

We do not perceive, then, any thing to distinguish this case from one where the officer is sued for acting under an ordinary execution. It is not pretended that the legislature lack the power to declare a. rate-bill or warrant to have the effect of an ordinary execution, and they have done so, except that the constable is not authorized to levy upon the property of the delinquent until a demand has been made of him for the amount and he has refused or failed to pay.

As to the demand and refusal in this case, there was ample evidence, and the question was left to the jury.

In relation to the testimony offered by the plaintiff which proposed to show that some of the preliminary steps required of the board of trastees had been neglected, we are unable to see its relevancy. If the suit was against the trustees, there might be some propriety in holding them responsible for any failure of theirs in complying with every material provision of the statute; but it would appear very unjust to visit their negligence upon the constable, whose business it is made to collect the warrant, and who has no means of ascertaining whether the trustees have, in. all respects, done their duty or not.

Judgment affirmed;

the other judges concur.


author: NaptoN, Judge,

text:
    Chism’s Administrator, Plaintiff in Error, v. Williams, Defendant in Error.
    1. The words “ die without issue” in a bequest of chattels, made in this state prior to 1845, when used alone as designating the contingency upon which a limitation over by way of executing- a bequest is to take effect, mean an indefinite failure of issue, and the contingency consequently being too remote the limitation over by way of executory bequest is void.

      2. In order that other additional expressions in the ■will may override this well settled meaning of the words “ die without issue,” and make them mean a definite instead of an indefinite failure of issue, they must point incontestably and unequivocally to the death of the first taker as the period contemplated by the testator when the limitation over should take effect.
    3. A testator dying in 1832 bequeathed to his daughter Charity a horse, saddle and bridle, feather bed, a cow and calf, and a female slave; the will contained this further provision: “ But here be it fully understood, that if my daughter Charity should die without issue, then and in that case what I have willed and bequeathed to her, it is my will and pleasure that it be given by [my] executors to my daughter Mahala, to be enjoyed by her and her heirs forever.” Held, that the limitation over by way of executory bequest was void as being upon a contingency too remote, an indefinite failure of issue.

      Error to Howard Circuit Cowt.

    This was an action for the possession of certain slaves. The plaintiff sues as administrator of Mahala Chism, deceased. At the trial, the plaintiff introduced in evidence the will of Colden Williams, deceased. "This will contained the following clauses: “ I will and bequeath to my daughter Charity a certain negro woman by the name of Chaney. I also will to my daughter Charity a horse, saddle and bridle, to be worth one hundred and ten dollars. I also will to my daughter Charity one of my feather beds and bed furniture, to be selected for her by my executors.” “ I also give my daughter Charity a cow and calf to be worth ten dollars; but here be it fully understood, that if my daughter Charity should die without issue, then and in that case what I have willed and bequeathed to her it is my will and pleasure that it be given by [my] executors to my daughter Mahala, to be enjoyed by her and her heirs forever.” This will was published March 2, 1824. The testator died in 1882. His daughters Charity and Mahala survived him. Mahala married one Chism and died about 1840 or 1841, leaving her surviving a daughter and granddaughter. Charity died in January, 1858, without issue. Said slave Chaney died before said Charity. The slaves in controversy are her children.
    The plaintiff asked the court to declare the law to be as follows: “ The words ‘ should die without issue/ with the expressions and circumstances accompanying said words, used by Colden Williams, deceased, in the bequest by his will to Ms daughter Charity of the slave Chaney, mean issue living at the death of said Charity and not an indefinite failure of issue; and the limitation to his daughter Mahala is a legal and valid limitation; and by said bequest a life interest in said slave Chaney only passed to said Charity, and the absolute property in said slave Chaney vested in said Maha-la ; and the plaintiff is entitled to recover the possession of the offspring of said Chaney or their value, with interest on their value at six per cent, per annum from the institution of this suit down to the present time.” The court refused so to declare, and found for defendant.

      Douglass 8f Hayden, for plaintiff in error.
    I. The simple limitation of the slave. Chaney to Mahala, should Charity “ die without issue,” is a valid limitation and not repugnant to any rule of legal construction. The testator meant that Mahala should take the property after a definite and not an indefinite failure of issue. His intention alone is to govern. (See Forth v. Chapman, 1 P. Wms. 668 ; Pleydell v. Pleydell, 1 P. Wms. 749 ; Pimbury v. Elkin, id. 563; Nichols v. Horper, id. 199 ; Target v. Gaunt, id. 432 ; Lyde v. Lyde, 1 T. R. 593 ; Goodtitle v. Peyton, 2 T. R. 720 ; Porter v. Bradley, 3 T. R. 143 ; Doe v. Perryn, 3 T. R. 494; 7 T. R. 589; 3 J. J. Marsh. 89 ; Moore v. Moore, 12 B. Monr. 653 ; 4 Kent, 12, 13, 274, 281; Cruise’s Dig. tit. Estate Tail, ch. 1, § 23, 27 ; 8 Mo. 1; 1 Dana, 235 ; 1 Terr. Laws Mo. p. 436; Geyer’s Dig. 125; R. 0. 1835, p. 119, § 5 ; R. C. 1845, p. 219, § 5 ; R. C. 1855,' p. 355, § 5 ; Dunn v. Bray, 1 Call, 338; Yaughn v. Guy, 17 Mo. 429 ; Dugan v. Livingston, 15 Mo. 230 ; Peters v. Carr, 16 Mo. 54; Bills v. Brown, 2 Cro. 590; 2 Jarm. on Wills, 262.)
    II. Should this court be inclined to follow the strict, rigid and unnatural rule of construction of the English courts, and the courts of those states where the statute de donis has been adopted as part of their law of property, then, it is contended, there are sufficient additional expressions connected with the bequest to take the case out of that rule. The testator did not mean to convey the idea that his executors should live for an indefinite series of generations, and then that they should give Mahala the slave, the horse, saddle and bridle, the bed, and the cow and calf, and all to be enjoyed by her. Such a construction would be repugnant to common sense. The property bequeathed was perishable. Very slight circumstances should take the case out of the operation of the rigid rule. (See Kent Com. 282; 2 Jarm. on Wills, 817, 324 ; 1 P. Wms. 563 ; 3 P. Wms. 258 ; 2 T. R. 720 3 T. R. 143 ; 7 T. R. 589; 1 Johns. 440 ; 12 Wheat. 153; Anderson v. Jackson, 16 Johns. 382; 10 Johns. 12; Brown P. C. 299 ; 2 Curt. C. C. 126 ; 18 How. 202 ; Hal-bert v. Halbert, 21 Mo. 283 ; 1 T. R. 593.) The additional expressions and circumstances connected with the bequest in this case, showing the intention of the testator, are not slight, but convincingly strong.

      A. Leona/rd, for defendant in error.
    I. In reference to the meaning of the words “ die without issue,” when used in limitations of property, the general rule is that in legal contemplation they import an indefinite failure of descendants, in wills as well as in deeds, and in reference to personal as well as to real property. (See Beauclerc v. Dormer, 3 Atk. 312 ; Barlow v. Salter, 17 Ves. 481; Campbell v. Harding, 2 Russ. & Myl. 402; Bigge v. Bensley, 1 Brown, C. C. 176; Chandlers, v. Price, 3 Ves. 101; Crowder v. Stone, 3 Russ. 222; Porter v. Ross, 2 Jones N. C. Eq. 197; Gray v. Gray, 20 Geng. 804; Moody v. Walker, 3 Ark. 147 ; 4 Kent, Comm. 284, 294 ; Vaughn v. Guy, 17 Mo. 431; Halbert v. Halbert, 21 Mo. 278.)
    II. In the present limitation there are no expressions or circumstances sufficient to show that the testator used the words in a sense different from that which the law imputes to them; in other words, there is nothing in the present case sufficient to take it out of the general rule. (See Barlow y. Salter, 17 Yes. 479; Down v. Penny, 1 Mer. 21; Keys v. Chatt. 138 ; Campbell v. Harding, 2 Russ. & My. 390; 7 T. R. 596; 1 P. Yms. 663, 198, 432, 534, 563; Prec. Ch. 528 ; 2 Ves. sr. 236.)
   NaptoN, Judge,

delivered the opinion of the court.

The only matter for consideration in this case is the construction of the will of Colden Williams, made in 1824, in which the testator gave to his daughter Charity a negro woman and some other personal property, and' then declared: But here be it fully understood, that if my daughter Charity should die without issue, then and in that case what I have willed and bequeathed to her, it is my will and pleasure that it should be given by [my] executors to my daughter Mahala, to be enjoyed by her and her heirs forever.”

It may be considered as the settled law in England ever since the statute of Wills of 32 Hen. VIII, ch. 1, (1540) that a devise to one in fee, with a limitation over in the event of the first taker dying without issue or heirs of the body, creates an estate tail in the first devisee, and therefore the words “ dying without issue” must mean an indefinite failure of issue. There is no conflict of authority in the English cases on this point so far as devises of real estate are concerned. Chancellor Kent says: “ The series of cases in the English law have been uniform from the time of Year Books down to the present day, in the recognition of the rule of law that a devise in fee, with a remainder over, if the devisee dies without issue or heirs of the body, is a fee cut down to an estate tail; and the limitation over is void, by way of executory devise, as being too remote and founded on an indefinite failure of issue. This rule of construction, it may be added, has been generally adopted in the United States, and, unless it be in Kentucky, I am not aware that it has been entirely disregarded in any of the states.”

This construction or interpretation of the words “ dying without issue” was originally established by the statute de donis (13 Edw. I, ch. 1,1285) as applicable to deeds. Where the will of the donor was to be followed and subsequently to the passage of the statute of Wills (82 Hen. YIII, ch. 1) it was applied to wills, where the will of the testator was the rule of construction. It may be considered a parliamentary interpretation of the words, professedly based upon a design to carry out the intent of the donor or testator, but really adopted to carry out the views of public policy indicated by the law of entails. It is an artificial interpretation of words contrary to their natural, vulgar and grammatical meaning, and, although the ingenuity of many able judges in England and of Chancellor Kent, in this country, has been exerted to support the rule, not merely as a fixed rule of law, settled by legislation and judicial-precedent, but as really one having a tendency to promote the intention of testators and donors, the common sense'of mankind seems to have revolted against the course of reasoning, and, both in England and in this country, legislative authority has interposed to restore the words to their natural meaning.

A distinction was taken in England between devises and bequests of personal property, or rather at first between devises of freehold estates and of terms for years. As terms for years and other chattels were not within the statute de donis, the policy of that statute did not render it necessary to give so unnatural and artificial a meaning to the words “ dying without issue” when applied to this species of property, as had become their fixed interpretation when applied to freehold estates, capable of being' entailed. A distinction was therefore attempted to be established in the case of Firth v. Chapman, 1 P. Wms. 663; and it was recognized and followed in several other cases. Chancellor Kent seems to. think the distinction was quite a reasonable one, and might well have been maintained; (Anderson v. Jackson, 16 Johns. 409;) but, after a brief struggle for existence in England, it seems to have been gradually lost sight of, and to have ultimately amounted to this, that in wills of personal estate the courts would lay hold of very trivial expressions in the will to take the case out of the rule. But the rule was conceded in Beauclerc v. Dormer, 2 Atk. 308, as applicable to both personal and real property, and in a number of cases following it, so that Chancellor Kent was of opinion, in 1819, when the case of Anderson v. Jackson was before the court of errors, that even then the great weight of authority was decidedly that the words “ dying without issue,” standing without other circumstances of intention, meant a general and indefinite failure of issue, and an executory bequest of personal property made after such contingency was void. There was, in truth, no foundation for the distinction, upon the hypothesis that the rule itself had been made to cany out the will of testators; for it was plain that when the testator, as was frequently the case, used the same words and applied them both to his real and personal estate, it was absurd to suppose he intended them in different senses in the same will. So long, then, as the courts had held that the words “ dying without issue” imported an indefinite failure of issue, which it was necessary to hold in order to convert the first devise in fee into an estate tail, the only effect which an application of these words to personal property could reasonably have would be to leave the first estate an absolute fee; and then the rule which governed executory devises, even when a fee was limited in a fee that the estate over must vest within a life or lives in being and twenty-one years and a few months thereafter, would destroy the limitation over as completely and effectually as though the first estate given was an estate tail.

• In the southern states of this Union, where these limitations occur so frequently in bequests of slaves, this distinction between real estate and chattels has not been followed or adopted; but the words “ dying without issue,” unless controlled by other words, have been uniformly construed an indefinite failure of issue. (Hunter v. Haynes, 1 Wash. 71; Eldridge v. Fisher, 1 Hen. & Munf. 559; Daude v. Chaney, 4 Harr. & McHen. 393; Davidson v. Davidson, 1 Hawks, 180; Bryson v. Davidson, 1 Murphy, 143; Mullhens v. Daniel, 1 Murphy, 4; Every v. Vernon, 1 Nott & McCord, 69; Keating v. Reynolds, 1 Bay, 80; Jones v. Rice, 3 Depaup. 165.)

Another distinction was taken in England in bequests of terms for years, between cases where an express estate tail was first created before the limitation over and those where only an implied estate tail would have been created, had the subject matter been real estate. But this distinction was abandoned, and it has been frequently held that the limitation of a term over, after a dying without issue, even in such cases where the limitation would only have given an estate tail by implication in a real estate, is to be taken in the legal sense of the expression, and therefere the limitation is void. (Fearne Ex. Dev. 233.) Nor does it make any difference whether the devise is to A. for life expressly, and if he die without issue, remainder over, or to A. indefinitely, and if he die without issue, remainder over. (Cruise Dig. tit. Devise, eh. 19, § 35, and cases there cited.)

The only question then, in this case, is whether there are any expressions in the will of C. Williams to take the case from the operation of this rule. The only expressions in this will to distinguish this from any other case, where there is a bequest over upon a dying without issue of the first taker, are the words “ then and in that case” and the words “ to be enjoyed by her.” The direction to his executors to give the property to his daughter Mahala if his daughter Charity died without issue, can not be understood as having’ any influence upon the question of intent. There can be no doiibt that it was the testator’s intent that his daughter Ma-hala should have the property, in the event indicated, whether his executors were alive or not when that event occurred. Nor is there any thing in the words which declare that the property ivas to he enjoyed by his daughter Mahala, to show that the gift was intended as a personal bequest, inasmuch as the testator adds, that it is to be enjoyed by her and her heirs. This shows, beyond all doubt, that, whether Mahala was alive or not when the testator-intended the estate to vest, was a matter which had no influence on his intended disposition; but he designed the property to vest absolutely in her and her heirs.

In relation to the words “then and in that event,” the case of Beauclerc v. Dormer, 2 Atk. 311, is decisive as an English authority; nor can the case of Wilkins v. South, 7 Term. R. 555, be considered as conflicting with Lord Hard-wick’s construction of the word “ then.” In this last case, a leasehold was bequeathed to P. and the heirs of his body lawfully begotten and their heirs and assigns forever; but in default of such issue, “ then after his decease” to go over. Lord Kenyon considered the words “ then after his decease” as clearly pointing to the death of P. as the time when the estate would vest.

The case of Bryson and others v. Davidson, 1 Murphy, 143, is like the present in more than one respect, but in regard to the use of these words “ then and in that case” it is identically the same. There a testator bequeathed to his daughter a negro woman and child, and land and household furniture, and declared that “if she died without having heirs, then and in that case” the property to be divided between the testator’s nephews, &c. The limitation over was held void, although in the argument great stress was laid on the words “ then and in that caseand the authority of Weekly v. Rugg, 7 Term R. 322, was invoked. The case of Matthews’ Adm’r v. Daniel, 1 Murphy, 42, is a case still stronger as showing the adherence of the supreme court of North Carolina to the rule under circumstances where the nature of the property would necessarily require the limitation to vest within a life in being. This was a bequest of a “ negro fellow named Bob and a bay horse “ to the testator’s daughter, and “ if she should depart this life without heir lawfully begotten of her body, the said negro and horse should belong to another.” The court said the limitation was too remote and that the absolute property vested in the first legatee. The case of Timberlake v. Graves, 6 Munf. 174, is probably as strong a case as can be found to show the very slight circumstances which have- afforded the courts an opportunity of taking cases out of the rule of law. In that case the testatrix gave to her nephew a number of negroes “ to him and his heirs forever; but in case it should please God for him to die without heirs, then and in that case it is my wish what I have given him to be equally divided between my two nieces M. A. and P. A.” • The court sustained this limitation over, and, although the language of that will differs very slightly from the one we are considering, yet the difference happens in a matter which Judge Roane relied upon as the very basis of his opinion in favor of the limitation. The ground upon which the opinion was founded is, that the devise over to the nieces is to them merely, and not to them and their heirs. It was intended as a personal benefit to them, and the words “ then and in that case” and equally to be divided” are merely referred to as auxiliary circumstances justifying this construction. It is unnecessary to decide whether, in this state and under our statute of wills, this limitation over to the two nieces could be regarded as a personal bequest, which could only be available to them in the event they survived the first taker. It is sufficient to say that the limitation in the will we are considering to the daughter “ Mahala and her heirs” will not admit of any such construction.

It may be proper to observe here, that we regard the question in this case as one of authority merely. When the cases speak of words and circumstances to show the plain intent of the testator to be a definite and not an indefinite failure of issue, we understand them to refer to that intent as manifested solely by the additional words and circumstances. If the question was one of intent, arising generally from the face of the will, we could have no hesitation in saying at once that the testator Golden Williams, when he spoke of his daughter Charity dying without issue, alluded to her death without issue, and not to the death of her great grandchild or any remote descendant without issue. No additional words could add any force to this conclusion. But that is not the question. The question is, conceding that the words “ dying without issue” means an indefinite failure of issue, are there other words which, of themselves and in despite oj this general manifestation of intention to keep the property indefinitely in the descendants of the first taker, point incontestably and unequivocally to the death of the first taker as the period contemplated by the testator when the limitation over should take effect. What those words must be, or, at all events, what must be their unequivocal import, is almost as well settled by the precedents as the rule itself. There is, it is true, conflict as to the precise words which will answer, and some courts have gone further than others, and seized upon slighter pretexts and more, apparently, trivial circumstances to carry out what every one now seems ready to admit to be the real intention in all such cases. It is not necessary for us to review the cases, it is sufficient to say that we have found no case which could warrant the conclusion that the particular phraseology of the will now before us would overrule the general import of the words “ dying without issue.” No case has been cited, and we presume none could be found. Without, therefore, going into any examination of the numerous cases on this subject, it is sufficient to say that the particular phrases which the courts have in other cases seized upon to give effect to the limitation over, are not to be found in this will, and that the principles established by those cases will not apply to the present.

Our statute concerning wills provides that “ the judges of the respective courts and all others concerned in the execution of any last will and testament, shall have due regard to the direction of the will and the true intent and meaning of the testator in all matters and things that shall be brought before them concerning the same.” It may be thought that this injunction would be a sufficient authority to the courts to disregard this ancient rule for the construction of wills which clearly frustrates the “ true intent and meaning” of the testator. But this provision has been ón our statute books since 1814, (Geyer’s Dig. p. 480,) and in 1825, notwithstanding the general declaration in tbe act, the legislature found it necessary to change the rules for the construction of wills in several particulars. The rule in Shelly’s case was abolished ; (R. C. 1825, p.-, tit. Wills, § 18 ;) the omission of the words “ heirs and assign,” or the words “ heirs and assigns forever,” was hot allowed to thwart the purposes of the testator; (R. C. 1825, p.-, § 19;) and lapsed legacies were provided for (sec. 21). Subsequently, in 1845, the rule concerning the words “ dying without issue” was established; so that the legislative construction of this general provision in the law concerning wills, requiring the courts to have regard to the true intent and meaning of the will, acquiesced in, if not positively sanctioned, by similar judicial construction, has been to regard the true intent and meaning of the testator as an intent to be ascertained in accordance with the fixed rules of construction adopted and recognized from the earliest times down to the present, however much these rules may have been regarded as calen-, lated to mislead in an honest search after the testator’s meaning. Nobody could doubt that a testator who devised Blackacre to A. without any further mention of the subject, meant to give A. an absolute estate ’ in Blackacre, but it was very well settled law until otherwise declared by statute that A. would, under such a devise, take only an estate fox life. It was not in the power of the courts to say that it was the intent of the testator to give A. a fee simple, for the rule of law for the construction of this will was different; and there could be no stability or certainty in titles if the rules for the construction of particular phrases in deeds or wills could be changed according to the mere caprices of the courts. When they are once fixed, every one can buy or sell with confidence ; but if different courts can change them according to their varying notions of justice, titles become unsettled.

This case, we may add in conclusion, is one of the first impression in this state. The cases of Wilson v. Cockrell, 8 Mo. 1; Vaughn v. Guy, 17 Mo. 479; Hulbert v. Hulbert, 21 Mo. 277, are cases of deeds; and there is nothing decided or said in them which conflicts with our conclusion in this case.

Judge Ewing concurring,

the judgment of the circuit court is affirmed.


text:
    The State, Appellant, v. Woolery, Respondent.
    1. The pardoning power granted by the constitution to the governor of this state extends to the granting of pardons as well before as after conviction.

      Appeal from Benton Circuit Court.

    The pardon pleaded in bar by the defendant was granted pending the indictment.
    Noell, (attorney general,) for the State.

      Johnson Sf Ballou, for respondent.
    I. The governor has power to grant pardons before conviction. (Const, of Mo., art. 4, § 6 ; State v. Sloss, 25 Mo. 291; 4 Black. Com. .395, 401; 1 Bish. Crim. Law, § 705 ; 1 Kent Comm. 284; 18 How. 310; 1 Hawk. P. C. 553; Story on Const. § 1509; 7 Pet. 150; Baldw. O. C. 91; 1 Opinions of Att’ys General, p. 341; 2 id. 230.) The plea in bar is good. (1 Archb. C. L. 114; 1 Chitt. C. L. 469.)
   Scott, Judge,

delivered the opinion of the court.

Prudence Woolery was indicted for murdering her bastard child. She plead in bar of the indictment a pardon from the governor, which was allowed her. From this the State appealed, maintaining that the governor could not pardon before conviction.

The constitution ordains that the governor shall have power to remit fines and forfeitures, and, except in cases of impeachment, to grant reprieves and pardons. Thus it will be seen that, with a single exception, the power of pardon is absolute and uncontrolled, and the governor possesses that prerogative in as ample manner as it is enjoyed by the kings of England. There it never was doubted but that the king could pardon before conviction. Blackstone says that a pardon may be pleaded in bar of an indictment. If it is a good bar to a prosecution, it must be a valid act. (4 Black. Comm. 337.) He says the king’s charter of pardon must be specially pleaded, and that at a proper time; for if a man is indicted, and has a pardon in his pocket, and afterwards puts himself upon his trial by pleading the general issue, he has waived the benefit of such pardon; (id. p. 402;) thus clearly showing that a pardon before conviction is effectual.

It seems to be equally well settled in the United States that unless the power of pardoning is restricted, it may be exercised as well before as after conviction. (Rawle on the Constitution, 177; Walker’s American Law, 98.)

The other judges concurring, the judgment will be affirmed.


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    Harper, Plaintiff in Error, v. Harper, Defendant in Error.
    1. Where a wife seeks a divorce from her husband she must separate herself from his bed; she can not expect to maintain her suit and share his bed at the same time.
    2. Courts will not grant divorces to those who, by a long course of ill-advised and imprudent conduct, have produced such a state of alienation of feeling as would, if unexplained, seemingly warrant a divorce.

      Error to Jackson Circuit Court.

    It is deemd unnecessary to set forth the facts more fully than they appear in the opinion of the court.

      Chrisman Sf Comingo and Smart Sf Sheley, for plaintiff in error.
    I. The charge of adultery made by a husband against a wife is such an indignity as will authorize a divorce. (19 Mo. 355 ; R. C. 1855, tit. Divorce ; 5 Blackf. 81.) Although .plaintiff remained with defendant after the charges of infidelity, it does not amount to a condonation. (6 Mars. 69; 6 Barr, 449; Bishop on Mar. & Div. § 368, 371; 7 Paige, 60.) Before defendant could legally avail himself of any testimony amounting to recrimination, or tending to show it, he must specifically plead it. (Bishop on Mar. and Div. § 408 ; 4 Paige, 432.) The court, therefore, erred in receiving the testimony of Beamer and Twyman. Recrimination to be a bar must be such as to constitute a proper basis for a judicial decree. (10 Calf. 257; 12 Mo. 53 ; Bishop, § 407.)

      Hovey 8f Hicks, for defendant in error.
    I. Plaintiff was not the innocent and injured party. The evidence sustains the decree. (See 28 Mo. 592; 27 Mo. 383.)
   Scott, Judge,

delivered the opinion of the court.

This is a proceeding instituted by the plaintiff in order to obtain a decree from her husband, the defendant, from the bonds of matrimony.

From the zeal manifested by those engaged in the management of the cause, we infer it is one in which the parties feel a deep interest, and we have given it that deliberation its importance claims from us. This lady acted unwisely in placing herself under the direction and control of others in instituting this suit. She must have known that, in the event of such a proceeding, a separation from the bed and board of her husband was indispensably necessary. She could not expect to live'in the house of a husband from whom she was seeking a divorce, and that, too, on the ground that he rendered her condition intolerable. If the husband’s cruelty drives his wife from his house, the law sends her out with credit for all that may be necessary for a support according to her husband’s state and expectations in life. Knowing this, how could she expect that the courts would not mistrust her sincerity when she complained that her husband rendered her condition intolerable,, if, when the officer of the law went with her process against her husband he should summon him at a late hour of the night from her bed. How so revolting a transaction occurred is nowhere explained. There is no pretence that there was any force or authority of the husband exerted in order to compel the stay of the plaintiff at his house.

We are not of the opinion that the plaintiff has made out a case for a divorce. She seems to have had an agency in bringing about the state of which she complains. That lively sensitiveness on the subject of her reputation for virtue hardly corresponds with the obstinacy of her conduct towards the object of her husband’s jealousy. So keen a sensibility, should have restrained her from showing any attentions to the individual of whom she knew her husband was suspicious. Her conduct, however innocent at first, was certainly unbecoming, after she was apprised of her husband’s apprehensions, although they may have been ill-founded. He had a right to admonish her, and although there may have been no cause for his admonitions, yet she must have known that if she persisted in her course the suspicions against her would be heightened. Had there been such a state of mind between her and the object of her husband’s fears as should only have existed, it does seem that after they were informed of' the defendant’s state, nothing should afterwards have been done that would serve to continue or strengthen his suspicions. A woman, sensibly alive to her reputation for virtue, would never persist in a course of conduct which she was aware excited suspicions against her in the minds of those to whom that virtue is dear. A married couple must yield a little to each other’s inclinations, although they may appear somewhat unreasonable ; and though there may be no criminality in refusing to do this, yet when, by obstinacy and non-compliance, an alienated state of mind is produced between them, they can not expect that the courts will lend too indulgent an ear to their applications for a divorce. Courts will not grant divorces to those who, by a long course of ill-advised conduct, have produced a state of tilings which would seemingly warrant such a measure. These observations have been made, not with the view of making any insinuations against the virtue of the plaintiff, but as showing that, in our opinion, such indignities had not been offered to her by her husband as rendered her condition intolerable.

The evidence offered by the defendant and admitted against the objections of the plaintiff does not, in our opinion, affect the determination of the case. The suit of the plaintiff must have failed, although the evidence had been excluded.

Affirmed;

the other judges concur.


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    Blew, Respondent, v. McClelland, Appellant.
    1. Where there is a narpl agreement for the purchase of real estate, and the purchaser pays a portion of the purchase money, hut there is not such part performance as will take the case out of the statute of frauds, and a loss occurs, as hy the burning of buildings, before the execution of a valid contract of sale, such loss will fall upon the vendor, and the purchaser may recover back the purchase money advanced.

      Appeal from Mercer Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Slack, Edwards Sf H. C. Ewing, for appellant.
    I. McClelland admitted the agreement as charged., It was therefore not void. Blew had no right to insist upon the statute of frauds. He has stated what, the contract was. (McGowen v. West, 7 Mo. 569; Farrar v. Patten, 20 Mo. 88.) McClelland has admitted the important facts as stated. McClelland’s having received the insurance money does not affect his rights. (2 Amer. L. Cas. 585, 403 ; 4 Mass. 331.) The loss by fire falls upon the vendee. (Sugd. on Tend. 277.) The court erred in striking out the answers of Mc-Clelland. (Paine v. Meller, 6 Yes. 349.)

      Harris and Tindall 8f ShanJclin, for respondent.
    I. The portions of defendant’s answers were properly stricken out. The contract of purchase was incomplete. At the time of the fire plaintiff was not, either in law or equity, the owner. (See Thompson v. Gould, 20 Pick. 134 ; 11 B. Monr. 42; 2 Story Eq. § 769 ; 14 Pet. 173; 5 Pet, 264; 1 Pet. 376 ; 2 Sch. & Lif. 554; 4 Pet. 311; 6 Sim. 340; Greenway v. Adams, 12 Yes. 399; Denton v. Stewart, 1 Cox, 258; 2 Keen, 25.)
   Napton, Judge,

delivered the opinion of the court.

On the 8th of November, 1856, Blue, the plaintiff, made a verbal contract with McClelland for the purchase of a lot in the town of Princeton, Mercer county, on which there was a tavern and other buildings. The improvements constituted the principal value of the property. The price agreed on was $1,550, five hundred of which was paid down. Mc-Clelland was to execute on the same day, or the Monday following, a title bond for a conveyance of the title when the purchase money was paid, and Blue was to give his notes for the balance of the purchase money. On Sunday, the 9th of November, the buildings were all destroyed by fire. Nothing further was done; the title bond, although tendered, was never received, and the notes for $1,050 were not executed. McClelland had a policy of insurance on the premises for eight hundred dollars, which he collected from the company, representing himself as the owner, and which in his answer he offers to treat as a liquidation of the purchase money, pro tanto. This suit is brought by Blue to recover the five hundred dollars purchase money advanced, and the only question presented by the record is whether, under these circumstances, the action will lie.

The case of Paine v. Meller, 6 Ves. 349, is understood to have determined that, where there is a contract for the sale of a bouse, and before a conveyance the .house is burned down, the loss falls on the purchaser, and the purchaser is still bound to execute his agreement to pay -the purchase money. This does not appear to have been the opinion of the Master of tlie Rolls in Stout v. Bailey, 2 P. Wms. 220, who thought, in such a case, the purchaser would not be bound. But Sir Edward Sugden seems to regard the decision of Lord Eldon, in Paine v. Meller, as the true exposition of the law. It is based upon the doctrine that equity regards as done what has been agreed to be done, and therefore, after a valid agreement to purchase, looks upon the' purchaser as the owner. Hence Sir Edward Sugden declares the law to bo that a “ vendee, being equitable owner of the estate from the time of the contract for sale, must pay the consideration for it, although the estate itself be destroyed between the agreement and the conveyance ; and, on the other hand, he will be entitled to the benefit which may accrue to the estate in the interim.” (1 Sugden on Vendors, 277.) The principle has, in England, been carried to the extent of holding that, where an agreement was made for the purchase of an estate in consideration of an annuity for life to the vendor, and he dies before the conveyance and before the annuity becomes due, the contract will still be specifically enforced. (Mortimer v. Cupper, 1 Bro. C. C. 156; Jackson v. Lever and others, 8 Bro. C. C. 605.)

But the maxim of courts of equity, that whatever is agreed to be done is considered as actually performed, is confined to cases where the contract or agreement is a valid one and can be enforced. If the contract, by reason of its being by parol, is one which neither a court of equity or of law can enforce, and nothing has been done to withdraw it fx-om the operation of the statute of frauds, the title remains as it was, both in law and equity, unaffected by the parol agreement; and whatever accidental losses the property may sustain must of course fall upon the owner. In such a case, it is clear that if, after the parol agreement to purchase, a valuable gold mine was found upon the premises, the purchaser could not compel a specific performance, unless there had been a change of possession or some other circumstance which courts have determined sufficient to take a case out of the statute. Neither ought he to be compelled to pay his purchase money, when a fire has destroyed the buildings which formed the principal inducement for the purchase. It would be very inequitable to adopt a rule which would not operate alike on vendor and vendee, which would leave it to the option of one to enforce the contract or not, as it might promote his interest or caprice. The case of McGowan v. West, 7 Mo. 569, was a case where the purchaser had taken possession, and by reason of that circumstance could have enforced a conveyance notwithstanding the contract was by parol. This court would not permit him to hold on to the land, and set up, as a defence to a suit upon his note for the purchase money, that the contract was a parol one. In the present case, there was no change of possession, and there was no other circumstance which would have enabled the plaintiff to enforce a specific performance of the contract had the estate, instead of being almost rendered valueless, been unexpectedly increased in value. As the contract could not be enforced by the purchaser, it would be- unjust to enforce it against him. Cunnutt v. Roberts, 11 B. Monr. 42.)

Judge Scott concurring, the judgment of the circuit court is affirmed. Judge Ewing, having been of counsel, did not sit in this case.


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    Smith’s Administrators, Defendants in Error, v. Thomas, Plaintiff in Error.
    1. A written contract is presumed to contain the whole contract entered into between the parties thereto.
    2. In a suit upon a promissory note absolute on its face, parol evidence is inadmissible to show that, though absolute in form, it was payable only upon a contingency, or that in a certain event only one-half the amount was to be paid.

      Error to Jackson Circuit Court.

    This was a suit upon the following due bill or promissory-note : “ February 8,1855. Due Jabez Smith three hundred dollars, borrowed money. [Signed] Charles N. Thomas.” The defendant set up in his answer that the consideration of said note was the sum of three hundred dollars, borrowed of said Smith for the use of one Todd; that at the date of said note both Smith and Thomas had liens upon some slaves belonging to Todd to secure debts due them respectively; that there was also at that time a judgment and execution lien upon said slaves that was prior to the liens of Smith and Thomas ; that Todd wanted Smith to loan him more money to pay off this prior lien; that Smith was unwilling to do so; that Smith, in order to induce Thomas to loan the money to Todd, promised Todd that if he would borrow the money from him for Todd, and give his note to him (Smith), he would lose half the debt if Todd did not pay to said Thomas the money loaned, and Thomas should be held to pay only one-half the'note; that in consideration of this promise Thomas did borrow the money and gave the note sued on and paid the money over to Todd, who applied it to the payment and release of the prior lien; that Todd has never paid said sum of money nor any part thereof to defen-dan Thomas, and is hopelessly insolvent.
    At the trial the evidence adduced supported the answer. Smith’s lien upon Todd’s slaves was prior to that of Thomas.
    The cause was tried by the court without a jury. The court refused the following declaration of law asked by defendant : “ If the court, sitting as a jury, believe from the evidence that Smith, for the purpose of inducing Thomas to borrow from him three hundred dollars to pay to said Todd, to enable said Todd to pay off the prior lien mentioned in the answer, did promise Thomas that, if he would so borrow said sum, to be applied by Todd to the liquidation of said lien, and give said Thomas’ note therefor, that said Thomas should only pay the one-half of said note if he should fail to collect the same amount off of Todd thereafter; and that by said promise of Smith he did induce said Thomas so to borrow said sum and to give Smith the note here sued on, and that said sum so borrowed was applied to the liquidation of said prior lien; and that said Thomas has been unable to collect said sum or any part of it from Todd; and that Todd is now hopelessly insolvent, that then it will find for plaintiff only one-half the amount of said note and interest.”
    The court found for plaintiff.
    Hovey, for plaintiff in error.
    I. The promise of Smith was not within the statute of frauds. (23 Mo. 431; 26 Mo. 221.) The court ought to have granted the instruction asked. (See 8 Mo. 6T7; 2 Kent Comm. 465; 5 Pick. 384; 21 Mo. 573; Addison on Contr. 843; 3 Hill, 171; 20 Mo-. 433, 297; 12 Mo. 298.) The evidence does not vary the written instrument; the due bill merely asserts a fact, and not a promise or contract.

      Hicks 8f Shelby, for defendants in error.
    I. There was no consideration for the promise made by Smith. It could not be set up to vary and contradict the written contract. (8 Mo. 161, 391; 24 Mo. 519; 17 Mo. 577.)
   Ewing, Judge,

delivered the opinion of the court.

This was an action on a due bill executed by the plaintiff in error to Jabez Smith, deceased, for three hundred dollars, borrowed money. The answer sets up a verbal agreement between the defendant and Smith at the time the due bill was given, by which it is alleged that but half of the sum called for by it was to be paid by the defendant in a certain event.

The only point in this case that need be noticed is whether the verbal agreement relied on by the defendant was admissible as a defence to the action, and we are of opinion it was not. The instrument is in form a due bill, but in legal effect a promissory note, because it is an acknowledgment of indebtedness* which it is well settled implies a promise of payment. It being then a promissory note absolute on its face and complete in itself, was.parol evidence admissible to make it conditional or payable upon a contingency ? The defence is not that there is a want or failure of consideration, or that a fraud was practiced upon the defendant in respect to the transaction by Smith; but the question is whether effect shall be given to a contemporaneous oral agreement, by which the liability of the defendant is to pay one hundred and fifty instead of three hundred dollars; whether, in other words, he may by proof of a verbal understanding show that a contingency or condition not incorporated into the writing has happened, and in consequence thereof the debt is only half of what it purports to be by the due bill. I am unable to see any thing in the transaction that takes the case out of the operation of the general rule against admitting parol evidence to add to, vary or contradict a written instrument. This contract is sought to be controlled by an oral agreement, made concurrently with it, engrafting upon it a stipulation by which the absolute promise shall be a conditional one; and, instead of an agreement to pay the amount called for by the writing, the defendant proposes to show that, upon the failure of Todd to pay him that sum, he in that event only owes the plaintiff half the face of the note. If the rule adverted to does not apply in this and like cases, it is not easy to imagine a case to which it would apply. Whatever difficulty there may be sometimes in the application of the general principle to given cases, it does not exist in the class of cases to which the one under consideration belongs. For the cases are numerous of the application of the rule in actions on notes absolute on their face, where it has been attempted to control their effect by proof of a contemporaneous oral agreement, showing that payment was to be made on a condition. (Ransom v. Walker, 1 Stark. 361; Mosely v. Hariford, 10 B. & C. 729; Foster v. Jolly, 1 C. M. & R. 703; Adams v. Wordly, 1 M. & W. 378; Hunt v. Adams, 7 Mass. 518; Cotes v. Wakefield, 15 Pick. 437; 9 Metc. 41.) Hence a note payable on “ demand” or a specified day can not be varied in its operation by parol evidence of a verbal agreement that the principal should not be called for as long as the interest was punctually paid; (5 Pick. 506;) or tl>at it should be paid at another time or in any other mode than is imported on its face. (1 Chitty, 661; 3 Pair. 466; 4 Mass. 414.) A sum in which a note is made payable can not, consistently with the rule, be varied by parol except upon the principle of showing want, failure or fraud in the consideration. The same rule forbids evidence of a contemporaneous or anterior parol stipulation between the parties varying the legal effect of a note where no time of payment is specified. (8 John. 189; see also Jones v. Jeffries, 17 Mo. 578.) The general rule on this subject is too familiar to require a reference to authorities, and the cases cited are referred to as instances of the application of the rule to promissory notes alone, and to cases analogous to that under consideration.

The judgment is affirmed ;

the other judges concurring.


text:
    Cheatham et al., Respondents, v. Hill, Appellant.
    1. Smith’s Administrators, ante, p. 307, affirmed.

      Appeal from Lafayette Circuit Cowt.

   Ewing, Judge,

deliveréd the opinion of the court.

The answer in this case contains no allegation of fraud; the defence it set up was inadmissible for the reasons given iri the opinion in the case of Ohrisman & Smart,' administrators of Smith, v. Thomas, decided at this term.

Judgment affirmed ;

the other judges concurring.


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    Smithers, Defendant in Error, v. Steamboat War Eagle, Plaintiff in Error.
    1. In an action against a steamboat in which it is sought to hold the steamboat responsible as a common carrier, it is not necessary that the petition should expressly state that the steamboat is a common carrier; it is sufficient if it clearly appear from the whole petition that the contract of af-freightment, the breach of which is complained of, was entered into with her in that capacity.

      Error to Lafayette Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Rylcmd 8f Son, for plaintiff in error.
    I. The court should have granted the instruction asked. The action being founded on tort and not on contract the defendant was bound to use only ordinary care and prudence. (Ready v. Steamboat Highland Mary, 17 Mo. 461.) The action against a boat as such must be founded on contract. (R. C. 1855, p. 304.) The rigid rules applied against common carriers do not apply to actions against boats.
   Ewing, Judge,

delivered the opinion of the court.

The question in this case is whether the allegations in the petition show the liability of the defendant as a common carrier. If so, the court below committed no error in refusing the instructions asked by the plaintiff in error and in overruling his motion for a new trial.

The petition alleges that as the owner of a certain horse he (the plaintiff) shipped him on board of said steamboat War Eagle, with divers other horses, goods and chattels, at the port of St. Louis, in the State of Missouri, to be safely carried, conveyed and delivered to plaintiff at the wharf at the city of Lexington, on the Missouri river, for certain freight and reward in that behalf paid defendant by said plaintiff; and the defendant then and there took and received tlie same accordingly to be delivered safely at the wharf at the city of Lexington, aforesaid; and the plaintiff states that on the said 10th day of September, 1859, and for a long time before and afterwards, the defendant was and still is a steamboat navigating the waters of this state, to-wit, the waters of the Missouri river. The petition then avers that the said defendant, while so used and being engaged in navigating the waters of the Missouri river, on, &c., and not regarding her duty in that behalf, and while she was discharging freight at the city of Lexington aforesaid, the place at which said horse was to be delivered, wrongfully and unlawfully and through the carelessness and negligence, misdirection and unskillfulness of the officers and crew in taking said horse from the boat, said horse was killed, by reason of which premises defendant did not safely carry, convey and deliver said horse according to the terms of her contract as aforesaid. The answer denies carelessness or negligence, and alleges that the horse lost his life accidentally.

It was proved on the trial that on leading the horse from the boat he fell off the staging and was killed. It is unnecessary, however, to notice the evidence in detail, as in our view of the case the instructions did not present the issues made by the pleadings. The instructions in substance are that the action was not against the defendant as a common carrier, but was founded upon negligence and alleged wrongful acts; and that the defendant was bound for ordinary care and prudence only. The instructions were erroneous if the petition shows the defendant to be a common carrier, and we think it does. It is somewhat informally framed, and the averments respecting the negligence and carelessness of the defendant might have been omitted; but these allegations are but surplusage, and do not vitiate the petition. The petition does not state totidem verbis that the defendant is a common carrier, but it must be held good, if the fact appears from the averments, notwithstanding that omission.

The most common and the most important description of carriers by water at the present day in this country are the owners and masters of steamboats, which boats are in almost. all cases engaged in the transportation of goods as well as of persons for hire, and are hence answerable for all goods generally shipped on board unless for losses happening by act of God or the public enemy. (Angelí on Carriers, § 83.) An allegation, in a declaration against joint owners of a steamboat, that the defendant, before and at the time of shipment, were the owners and proprietors of the boat and copartners in freighting, and which boat was usually employed in conveying and transporting cotton, &c., for hire, is a sufficient averment of the character of the owner as common carriers. (3 Stew. & Port. 135 ; 2 Selwyn,-.) In Bennett v. Felyan, 1 Flor. 403, it was held that where a declaration alleges that the defendant followed the occupation of a master or owner of a steamboat plying on a navigable river, it was a sufficient averment to fix the character which the common law attaches to masters and owners of ships, steamboats, &c., so as to charge the defendant with a breach of duty which alone results from that character, without an express averment that the defendant was a common earner. The court in that case say that the declaration being sufficient, prima facie, to make the defendant liable if the plaintiff’s allegations are supported by the evidence, the onus probandi was upon the defendant to show that, in virtue of some special public notice, or other good legal ground, he was not chargeable and responsible as a common carrier in his capacity and occupation of master or owner of the steamboat in question.

The petition in the case before us does not, it is true, anywhere use the words common carrier, but we think this sufficiently appears from the allegations it contains and the general frame of the petition. It avers that the defendant at and for a long time before the shipment was and still is a steamboat navigating the waters of this state, to-wit, the waters of the Missouri river; that the goods were delivered to and received by the defendant at the port of St. Louis to be safely conveyed to the city of Lexington, on the Missouri river, for certain hire and reward, and wliile so engaged in navigating said waters and not regarding her duty in that behalf, on, &c., at, &c. These averments we deem sufficient to fix the character of the defendant as a common carrier; and as her liability to the plaintiff did not therefore depend upon the question of negligence, the instructions asked by the plaintiff in error on that subject were erroneous and were rightly refused.

The judgment will be affirmed;

th'e other judges concurring.