author: Tompkists, J.,

text:
    Milly, (a woman of color,) v. Smith.

      Í. Slaves carried into Illinois, with a view to residence, and staying there long enough to acquire the character of residents, do, by virtue of such residence, be' come free.
    2. Such a residence, as would entitle the slave to freedom, cannot be acquired with* out the connivance or consent of the legal owner.
    3. Instruments of writing offered in evidence, which were executed in other States, and upon which depend the rights of parties litigant here, will, in the absence of the foreign law, be construed according to the laws of this State.
    APPEAL from St. Louis Circuit Court.
   Tompkists, J.,

delivered the opinion of the Court.

This was an action of trespass, &c., under the statute brought by Milly the appellant, against Smith the appellee, to establish a right to freedom. The appellee pleaded the general issue. Judgment was entered for the appellee, from which the appellant appeals to this Court. The facts proved at this trial are, that David Ship-man, a resident of Kentucky, owned and was in possession of the appellant as a slave; that on the 17th October, 1826, while residing in Kentucky, he executed a deed to said Smith, of which a copy is here given, viz: This indenture made this 17th day of October, 1826, between David Shipman of the one pait, and Stephen Smith of the other part, witnesseth : that the said David Shipman, for and in consideration of the sum of one dollar to him in hand paid, the receipt of which he doth hereby acknowledge, hath granted, bargained and sold, and by these presents doth convey unto the said Stephen Smith, and his heirs forever, a tract of land in Shelby county, on Guess’ Creek, containing 26 acres, upon which said Shipman’s grist and saw mill now stands; also, a negro man named Moses, about 30 years of age; one woman named Milly, about 25 or 6 years old; one child called David, about 18 months old; Harry about 16 years; Bill about 12 or 13 years old; Sarah about 27 years old; Eliza about 15 years old; six head of horses ; one yoke of oxen and cart; ten head (37) of cattle ; 30 head of sheep ; 30 head of hogs ; beds and furniture; house-hold and kitchen furniture of every description; faming utensils, and one clock: To have and to hold the said land, slaves and chattels, with their future increase, to him the said Stephen Smith, and his heirs, forever — and the said David Shipman covenants that he will warrant the title thereof to the said Smith, and his heirs, against the claim of all persons whatsoever, rendered, however, subject, to the following conditions, that is say: that whereas the above named David Shipman is indebted to the Commonwealth’s Bank in about the sum of eight hundred dollars, for which the said Stephen Smith is bound as security, and the said Shipman is also indebted to the heirs of William Cooper, in about the sum of six hundred dollars, for which said Stephen is bound as security in a replevin bond, also indebted to Elijah Warner in about the sum of one hundred and twenty dollars, an execution in the name of Helm for about one hundred and forty dollars, for which sums said Stephen is also bound^ as security; and is also indebted to said Stephen in his own right in about the sum of $207 due by note. Now the lands, chattels and slaves aforesaid, with their future increase, are hei eby declared tobe given in mortgage to secure, save, indemnify and pay the said Stephen Smith, as security, and in his own right in the several sums of money hereinbefore enumerated and mentioned; and it is hereby expressly understood and agreed between the parties, that the said David Shipman may, and is hereby permitted to retain and keep possession of the said land, slaves and other chattels with their future increase, and to have the use thereof, subject, however, to the lien hereby created; and should said Shipman, or the said Smith, at any time hereafter be able to effect a sale of the land, slaves, &c., or any part at their fair value, and apply the proceeds thereof to the payment of the liabilities and claims herein enumerated, or to the discharge of a judgment in favor of the Farmers’ and Mechanics’ Bank, of Shelbyville, against said Shipman, that in such case said Shipman and Smith will consent to said sale, and make title to the property so sold, in which title said Smith will release the lien hereby created. Witness, &c.”

The deed is signed by both parties. This instrument of writing was recorded in Shelby county, Ky. That soon after the execution of said mortgage, said Shipman being greatly embarrassed, took the said Milly with several other of his slaves, and secretly ran away with them to Indiana: that in Jefferson county, in the State of In-(38) diana, he executed a deed of emancipation to said slaves, of whom said Milly then present was one, and acknowledged the same before a Justice of the Peace of said State. This deed bears date 3d October, 1826, but was acknowledged on 30th of same month; ,that immediately afterwards, said Shipman carried said Milly to Peoria county, in the State of Illinois, where he said Shipman settled, hired a farm, stocked the same and declared that he intended to reside there permanently, and has ever since resided there and kept Milly there; that said Milly resided there with him from October or November, 1826, till some time in May, 1827, at which time the defendant came thither and took said Milly secretly away against her etpisent, and the consent of said Shipman, and brought her to St. Louis, where the present suit for freedom was commenced; that after said Shipman had carried said plaintiff to Indiana, said Smith had paid for him $632 54 on executions which the Sheriff had against him for some of the debts above mentioned in said mortgage. This money' was paid after the execution of said deed of emancipation; that said Smith never had possession of said Milly till May, 1827, when he removed her from Illinois, as above stated; and that said Shipman had for several years been in possession of her, till she was taken away as before mentioned.

The Circuit Court having refused to give several instructions prayed for by the plaintiff, proceeded to instruct the jury, that if they believed from the evidence, that said Shipman executed said mortgage for a valuable consideration to s'aid Smith, that said Smith became in virtue thereof the legal owner of said Milly, and that said Milly could not be free by the residence in Indiana and Illinois, in virtue of the ordinance of 1787, unless it appeared to their satisfaction that Smith assented to the removal of said Milly ; to which last instruction the plaintiff’s counsel excepted, and also excepted to the refusal of the Court to give the instruptions prayed by the plaintiff, which it is not considered material to notice at this time.

This Court is not disposed to view the deed of emancipation with much favor. The plaintiff cannot he regarded as a purchaser for a valuable consideration, a slave 4Jhaving nothing to give; but it has often been decided by the Courts of the late Territory of Missouri, and of this State, that slaves carried into Illinois with a view to residence, and staying there long enough to acquire the character of residents, do by virtue of such residence become free. The plaintiff in the Circuit Court made out a prima facia case of freedom ; hut if Smith he the legal owner, and did not connive at the removal of the plaintiff from Kentucky to Indiana and Illinois, then we are of opinion that the plaintiff did not acquire her freedom by such residence.

This mortgage, as it is called, was made in Kentucky, and ought to receive in our Courts, such construction as it would there receive. What construction would there be given to it, cannot be judicially known to this Court. If, as the Circuit Court decides, Smith became, by virtue of the instrument of writing executed to him by Shipman, the legal owner of Milly, and if, as it has been contended in argument, the recording of that instrument, is, by the statutes of Kentucky, notice to all persons, of Smith’s right, seme evidence of the laws of Kentucky ought, we think, to have been preserved on the record. If we are to construe the writing according to our own laws, (which must govern us where the foreign law is not proved,) we are inclined to think Shipman is the legal owner; since, by the contract, the right of possession remained in him for an indefinite time, and Smith had only a lien on her to secure the payment of debts; which lien Shipman might, at anytime, have defeated, by paying those debts.

The judgment of the Circuit Court is reversed, and the cause sent hack for further proceedings.


source: Caselaw Access Project

author: IVI’Gikk, C. J.,

license: Public Domain

text:
    Owens v. Geiger.

      1. If A. undertakes to keep the horse of B. for pay, and keeps him according to the request of B., and the horse escapes without any negligence on the part of A., he is not liable.
    2. Any act to be done, on the part of the undertaker, which forms a part of the agreement, should be set forth in the declaration; but a mere incident to such underking need not.
    3. Matter more in the knowledge of one party than the other, must he pleaded by the party having that knowledge.
    ERROR from Jefferson county Circuit Court.
   IVI’Gikk, C. J.,

delivered the opinion of -the Court.

This was an action on the case for negligently keeping a horse, as innkeeper, and permitting him to escape so that he was lost; plea not guilty, and issue joined. On the trial of the cause, it appeared in evidence that Geiger was an innkeeper, and stablest)) keeper, and kept horses for pay, and that Owens delivered his horse to him to be kept till his return, as he was going to foreign parts ; that Owens agreed with Geiger as to the feeding and keeping of the horse till his return, for which Owens was to pay a reas enable reward; that Owens told Geiger that he wished his horse to run in his yard in the day time, his legs being swelled; that Geiger said he would allow his horse to run in the lot with him whilst there; and that Owens consented that his horse might be put in the lot in the day time, if Geiger would let his horse run with him; that about four days afterward, about sundown, Geiger took his horse out of the lot to use him, and rode him off, leaving Owens’ horse alone in the yard; that during the absence of Geiger’s horse, Owens’ horse jumped out and escaped, and was lost. Other testimony was given on both sides, none of which need be noticed for the purpose of coming at the point to be decided in this case. After the evidence was gone through on both sides, the defendant’s counsel prayed the Court to instruct the jury, that if they believed that Owens’ horse was put into the defendant’s yard by Owens’ direction, and that the horse escaped therefrom without negligence on the part of Geigér, then they must find for the defendant. This prayer for instruction was undoubtedly right. The Court then proceeded to instruct the jury: That the agreement between plaintiff and defendant, concerning the keeping and feeding said horse, as ■proved, was a special agreement; and that plaintiff, to maintain his action, should have set it out in his declaration specially, and that not being done in this ease, they must find for the defendant. Upon this instruction the jury found for the defendant; and^his instruction, among other things, is assigned for error.

We are clearly of opinion this instruction was wrong; it proceeds on the ground that the request of Owens, that his horse in the day time might run in the stable-yard, and Geiger’s assent that his horse might run with him, is an essential constituent part of the undertaking, to keep safely and re-deliver the horse. The best way to test whether a thing be a part of an agreement, or only a mere incident, is, to see if damages could have been recovered for the non-performance of the thing. Now, in this case, the thing to be done by Geiger was, to safely keep, feed, and return the horse, and if this were done, no action could be maintained against him, though he had not let the horse in the lot at all; and if the horse had been let into the lot, in the day time, though he had omitted to let his horse run with him, (41) yet this, of itself, would not form any foundation for damages. Again, that need not he pleaded which should properly come from the other party. A case in point may be found in Stephen’s Pleadings, 355, where there was a covenant in a charter party, that no claim should be admitted or allowance made for short tonnage, unless such short tonnage were found and made to appear on the ship’s arrival, on a survey to be taken by four shipwrights, to be indifferently chosen by both parties ; and in an action of covenant, brought to recover for short tonnage, the plaintiff had a verdict. The defendant moved in arrest of judgment, that it had not been averred in the declaration that a survey was taken, and short tonnage made to appear — but the Court held, that if such survey of tonnage had not been taken, this was matter of defence which ought to have been shown by the defendants, and refused to arrest the judgment. Stephens cites for this 1 T. R. 638, which is not now in our possession. Furthermore in this case the rule is, that matter more in the knowledge of one party than the other, must be pleaded by the party having that knowledge. Here the manner of keeping the horse, and the manner of his escape, could not reasonably he in the knowledge of Owens, but was necessarily in the knowledge of Geiger ; therefore he must defend himself in this action by giving the matter in evidence.

The judgment is reversed, and sent back to the Court below for a new trial.


author: Wash, J., Tompkiiís, J.,

text:
    The Bank of Missouri v. McKnight's heirs.
    1. A. executed two powers of attorney to B.: in the first is given the power of making or endorsing promissory notes and hills of exchange; in the second the power of leasing, letiing, selling or demising, as the atlorney might think fit, sundry tracts and parcels of lands therein particularly named and described, and also to collect and pay all debts due or to become due, &e. — Held, to convey the power of mortgaging the land in question.
    2. Where an attorney does what he has authority to do, and more, his act is good to the extent of his authority; and where he stops short of his authority, if the ob jeet of the power be accomplished, his act is also good.
    ERROR from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was a proceeding by petition, under our statute, to foreclose a mortgage executed by Thomas McKnight, as the attorney of his brother, John, to the President, Directors &. Co. of the Bank of Missouri. John McKnight having died, his heirs were made parties, who pleaded specially : First. That the said Thomas McKnight had no good and sufficient authority from said John to execute said mortgage. Second. That said mortgage was fraudulently executed by said Thomas McKnight, in the name of the said John, without any good and sufficient authority; and Third. That said plaintiff fraudulently procured said mortgage to be executed by said Thomas, Ac. Fourth. Non est factum generally. The cause was submitted to the Court sitting as a jury, who found the issue on the fourth plea for the plaintiff, and the issues on the other three for the defendants, and gave judgment accordingly; to reverse which the present writ of error is prosecuted. The testimony given in the cause is all on the side of the plaintiff, ami is preserved in a bill of exceptions, consisting of two several powers of attorney from John to Thomas McKnight, executed on the same day, the mortgage sued on and parol proof, that at the time of the execution of said mortgage, the said John and Thomas McKnight were severally indebted to the plaintiffs, and also that each of them, as endorser for the other, was then indebted to the plaintiffs. The first power of attorney authorized said Thomas “ as substitute and proxy, (of said John,) to vote at any election for Directors for the Bank of Missouri, or on any other question that may be put at a stated or special meeting of the stockholders of the said Bank, and to do all other acts and things in (43) relation to the business of said Bank which I, myself, might or could do were I personally present, by virtue of my stock of said Bank, held by me individually or jointly with others; and to ask, demand, receive all dividends accruing on any such stock, and all other sum or sums of money due or to become due to me from said Bank, and to make and give acquittances or other sufficient discharges for the same y and also to sell, transfer and assign all my right, title and interest in and to all and every the shares of the capital stock of said Bank, held by me individually or jointly with others; and also- for me and in my name to make, execute and deliver all promissory notes and bills of exchange and to endorse, assign and transfer any hill or note, and to draw all checks which shall he necessary and properin and about the transaction of any business with, in, or through said Bank; and generally to do and perform all and every other act and thing in the premises, and in transacting my affairs and business with, in, through, or concerning said Bank,” &c.

The second power gives authority to said Thomas, “to lease, let, sell or demise, as he might think fit, sundry tracts and parcels of lands therein particularly named and described, and also to collect and pay all debts due or to become,” &c. The clause referring to the premises mortgaged, is in these words: “And also to demise, lease and let a certain lot of ground, whereof I am seized in severalty, lying and being in the town of St. Louis aforesaid, fronting on Main street and running to the river Mississippi, bounded, &c.; for a term of years not exceeding twenty, for such Irent, or otherwise to sell, grant or convey absolutely in fee simple, to,” &c. Upon fhis slate of the record two- questions present themselves: First. Had Thomas McKnight authority to mortgage (he -whole or any part of the lot referred lo? and if not, is there any thing to show that the same was executed fraudulently'? To ascertain the power we must look at both instruments, and collect the intention of (he parties. The first gives the attorney power to charge the.estate by making or endorsing promissory notes and bills of exchange. There is, therefore, we think, but little force in the position that the principal might not choose to have the estate encumbered wilh a mortgage. The words in the latter part of the clause, to sell, grant or convey absolutely, in fee simple,” are not intended to limit or point out the particular power to be exercised by the attorney, hut to show that all power and authority, touching the sale or disposal of the property, was given, Paley v. Agen (44) cy, p. 51, says if it he to do an act upon condition, and the agent do it absolutely, it is voi.d, and vice versa, hut the authority cited does not support him. Coke Lilt. 258-9., says, it has been so held by some; this, however, is not the law. It is now well settled, that where an attorney does what he has authority to do, and more, that his act is good to the extont of his authority; and there is no reason, why it should not be good where he stops short of his authority, if the object of the-power is accomplished. It is held in 3 P. Williams, p. 9, that a power to- sell includes a power to mortgage, which is a conditional sale.T williams is good authority, but this, in the broad terms in which the Ld. Chancellor lays it down, is not considered law; a special power must he pursued strictly, whether it be to sell or to do any other specific thing y but the intention of the party giving the power, (as I have before slated,) should, in all cases, govern the construction to be given to it, and determine the extent of authority. This is sufficiently seen from the two powers referred to, considering them as one act, to authorize the mortgage. From the supposed want of authority in the attorney, the Circuit Court inferred fraud, and found that the mortgage deed was fraudulently given and taken; this, we think, was also erroneous,. The judgment of the Circuit Court is, therefore, reversed, and the cause remanded for farther proceedings in conformity with this opinion.

Tompkiiís, J.,

dissenting.

I do not assent to the opinion of the Court, because I think the two powers of attorney are independent acts of John McKnight, and that the power to encumber the Jand by mortgage was not granted in the power to sell, &c., absolutely, in fee- simple.


author: Tompkins, X,

text:
    Melton v. M’Donald, adm’r.

      1. To man tain an action of detinue for goods, the plaintiff must have the right of property in himself and the immediate right of possession; — the gist of the action being the wrongful detainer and not the original taking.
    2. In setting forth the cause of action, it must be shown that the goods, &c., were the plaintiff’s, and an omission to do so will be fatal, even after verdict.
    3. Where the plaintiff sued as administrator, showed property in the intestate, and possession and detainer by the defendant, since the death of the intestate — held, that an action would not lie; the possession and detainer being against the administrator in his own right.
    ERROR to St. Louis Circuit Court.
   Tompkins, X,

delivered the opinion of the Court.

M’Donald, as administrator of Daniel Polk, alias Pogue, sued Melton in an action of detinue for some slaves, and had judgment, to reverse which Melton sued out his writ of error.

The facts on which the verdict was found, on which this judgment was rendered, are the same as those which were the basis of the action of M’Donald v. Walton, decided at this term, except that the acts of the General Assembly of the State of Kentucky were not given in evidence. In this case it is not then material to notice more than two of the errors assigned, which are: First. That the verdict and judgment are for the aggregate value of the slaves. Second. That the evidence does not support the declaration. The declaration contains two counts. In the queriiur the plaintiff calls himself administrator, &c., of Polk. In the first count he states his cause of action thus : For that whereas, said Polk, &.C., in his life time, on 1st Jan., 1803, at, &c., was lawfully possesed, as of his own right and property, of certain goods and chattels, &c., and being possessed thereof, the said Polk afterwards, to-wit: on, &c., at, &c., casually lost the said, &c., and the same, &c., on the 10th June, 1826, came into the possession of said Melton by finding. The second count states the cause of action as the first did, except that the birth of some children, descended from two of the slaves, is alledged to have taken place between the 1st of January, 1803, and the 10th June, 1826, and both counts then deny that the slaves were restored to the intestate in his life time, or to the administrator since the death of the intestate.

To maintain this action for goods, the plaintiff must have the right of property in himself, and the immediate right of possession. The gist of the action is the wrong-(46) ful detainer, and not the original taking. See 1 Cliitty, 121-2, and authorities there cited. In the statement of his cause of action, it must be shown that the goods, &c., were the plaintiff’s,'either by words of the plaintiff,” or that he was possessed of the goods, &c., or the omission will be fatal,'even after verdict, the objection being the want of title, and not a title defectively stated. 1 Ckitty 367, and cases there ■ cited. But when the right of action accrues to the'intestate in his life time, and the administrator wishes to sue in the right of the intestate, then he must s.how property in such intestate, and a wrongful detainer in his life time ; then averring the death of the intestate and his own appointment as administrator, he shows his right to a re«covery. This plaintiff" has chosen here .to show property in the intestate.

The proof is, that in 1807 or 8, Polk died possessed off these slaves, except those horn since his death ; that in a few weeks after his death, the widow removed from Kentucky, where he died, to St. Louis county, and married one Chapman, from which-marriage came the wife of Melton, as whose portion Melton received, by her father’s. will, these- slaves. Polk being dead, many years before Melton had possession of these slaves, could never have had, on account of such possession and detainer, any right'of action against him -T and it is-in vain that the declaration shows the slaves to have been lost several years before Pogue’s death ;. the testimony does not bear it out;. and the action must be brought in the righ’t of him against whom there was a wrongful detainer. M’Donald had no election to make, there being no detainer against his intestate ; it is in vain that he resorts to fiction, by stating that Polk or Pogue lost in his life time. He should have stated, as he has proved, that he (the administrator). was possessed as of his own right and property of, &.C., and lost- them — the losing certainly is fiction, but the right to the. property is such a right as must be proved, and could, under the decision of this Court, have been proved, for so soon as he took out letters of administration, he became vested with a right to all the property found in this State, of which Polk had the right at the.time of his death — and having the right of property coupled- with an immediate right of possession, he had a right to feign a possession in himself for the purpose of maintaining this action. It is not (47) sufficient that he has stated the possession to be in his intestate, for even had he-averred the death of Polk, (which has not been done,) he could only have made out-, his right of property by argument, and the rules of pleading requires that facts must-be stated clearly and distinctly. See 1 Chitly, 236. Had a right of action accrued for a promise- to pay money to the intestate, in his life time, there could have been no-election left to the administrator, he would have been compelled to bring his action in the right of the intestate, and then the promise must have been stated, and proved • to have been made to-the intestate;,, and proof of a promise made to the administra- ■ tor, would-not have supported a count on a promise to the intestate. Starkie, part-4th and vol-2, p. 541, and authorities.cited.

But when there is a wrongful detainer against the intestate in his life time,-which is continued against the administrator, he may make his election to sue in the right of the intestate, or in his own rightif he elect to-sue in the right of the intestate,, he must produce proof of a wrongfnl detainer from the intestate y- hut if he elect to sue in his own right, and prove a detainer from himself, then he must, in his declara-tion, show a right of property in himself, either by the words of the plaintiff, or that he was possessed of the goods, &c.” What may be the consequence of the first error assigned, it is not material to decide now. The authority cited (10 Co. Rep., 319,) shows that if no value-is found, the defect cannot be supplied by a writ of inquiry.: but here the aggregate value is found, and there-are authorities that the defect in such -cases may he supplied by a writ of inquiry. We are, therefore,-willing to» leave this to he decided when it shall he more minutely investigated by counsel, thatc it has been, in this case- The declaration is not supported by the evidence, andi the Circuit Court should so have instructed the jury, when requested by the de- - fendant.

The judgment is, therefore, reversed, and the cause remanded for further proceedings in conformity with this opinion.

      See next case.


author: ToMPKisra, J., Wash, J.,

text:
    M’Donald, adm’r., v. Walton.
    1. By the laws of Kentucky, regulating descents and distributions, slaves are held-to be real estate; and for want of issue of the intestate, of father, mother, brothers, • sisters and their descendants, if there should he no paternal or maternal kindred capable of inheriting on the one side or the other — the whole goes to the wife or-husband of the intestate.

      2. Slaves belonging to the estate of deceased persons, go to the administrator, to be' by him disposed of as the law directs.
    APPEAL from St. Louis Circuit Court.
   ToMPKisra, J.,

delivered the opinion of the Court.

McDonald sued Walton in an action of detinue for some slaves. At the March’1 term of the year 1827, judgmentwas rendered for Walton in the Circuit Court. Me- • Donald appealed to this Court, and at the May term of the same year, the judgment of the Circuit Court was reversed, and the cause sent back to the Circuit Court for further proceedings. At the November term of the Circuit Court for the same year, judgment being again given for Walton, McDonald appealed to this Court. The facts as they now appear in the bill of exceptions, are as follows, viz: — In the year' 1805, Daniel Polk or Pogue married Bebecca Walton in the State of North Caroli-' na; before and at the time of the marriage, Polk was possessed of certain slaves,, mentioned in the hill of exceptions, and for which slaves and their descendants this action was brought. Shortly after their marriage, Polk and - his wife removed from North Carolina to Kentucky, and settled on an Island in the Ohio river, talcing said slaves with them; In January, 1807 or 8, said Polk died intestate at his residence in' Kentucky, and about the last of Eebruary or the first of March, next thereafter, his widow left Kentucky, and came to Upper Louisiana, now Missouri, bringing with - her the said slaves, and one other, born in Kentucky, of the first mentioned. Polk-had no children, and at the time of his death, no family living with him except his wife and slaves. In the month of April of the same yeaT, the widow intermarried with one Absalom Chapman, a young man Without property. Soon after their marriage, Chapman and his wife went to- Kentucky on a visit, and after an absence of a few months, returned and settled at Point Labbadie, in St. Louis county, having said alavés in their possession. After being there something more than a year, they removed said slaves to the lower country to some place unknown, either in the Mississippi or Orleans territory. A few years afterwards, in the year 1815, Chapman and (49) his wife returned to St. Louis county, bringing with them the said slaves and their increase, and remained in possession of them till 1817, when Chapman died, and a few months after, Rebecca, his wife died. The plaintiff proved, that on the 19th June, 1826, he obtained letters of administration on Polk’s estate, in St. Louis county.

Chapman appointed the defendant, Walton, his executor. Walton proved the will and took on himself the execution thereof, as executor, and took possession of said slaves and their increase, and continued to hire them out, as executor, until the year 1823, when he settled his testator’s estate, and continued his possession of said slaves, as guardian of the infant children of Chapman and said Rebecca; and in that character hired out said slaves from year to year, till September, 1824, when he delivered to William Melton, husband of his ward Narcessa, daughter of Chapman and wife, a part of said slaves as his portion of Chapman’s estate; the defendant continued to hire out the remaining slaves till September, 1825, when he hired one of them to McDonald, the plaintiff, and two to one Waldo, neither of which have been returned to the defendant, and they are all three now in the possession of the plaintiff in this action, appellant here. The remaining part of said slaves are still under the defendant’s control, and hired out by him. Chapman and wife, before they departed hence for the lower country, expressed much uneasiness lest these slaves should be set free under Polk’s will, about which there was much talk. When Chapman and wife lived in Point Labbadie, there were but few families in the Point, the settlement being on the frontier. Polk had been heard to say,before he was married to Rebecca Walton, that he had no relations in America known to him ; it was also in evidence, that said Rebecca, soon after Pogue’s death, and before her removal from Kentucky, had been heard to say, “that she was much afraid that said slaves would be taken away from her, as Polk had, in his life time, made some arrangements with a man at the Red Banks about keeping or taking care of said slaves after his death,” and gave this as a reason for her removal from Kentucky with said slaves. Some Kentucky statutes were read in evidence, which will be noticed hereafter; and no other evidence, material to be here noticed, was offered. The defendant prayed the Court to instruct the jury: First. That if the jury find, from the evidence, that Polk died intestate in the State of Kentucky, in 1807 or 8, without any issue or other descendants, and without leaving any father, mother, brother or sister, or their, or either (50) of their descendants, and without leaving any paternal or maternal kindred capable of inheriting, the whole of said slaves which belonged to said Pogue, and which he had with him in Kentucky at the time of his death, descended to Rebecca his wife, as his heir at law. Second. If the jury find, from the evidence, that Re - becca, widow of Pogue, was entitled to the slaves of which Pogue died possessed, and that said Rebecca and those claiming under her, have been in the uninterrupted exclusive possession of said slaves, under a claim of title adverse to all other persons, for a period of fifteen years consecutively, they ought to find for the defendant. To which instructions the plaintiff objected. The Court gave them as requested. The plaintiff then prayed many instructions, three of which, only, will be noticed, the rest being substantially contained in those three: First. If the jury find, from the evidence, that Pogue died intestate in the State of Kentucky, in the year 1807 or 8, without any issue or other descendants, and without leaving any father, mother, brother, sister, or their or either of their descendants, and without leaving any paternal or maternal kindred capable of inheriting, yet the wife of said Pogue, and those claiming under her as her descendants, are not heirs at law of said Pogue, and cannot take, as heirs at law, any property, real or personal, left by said Pogue at the time-of his death. Second. That no length of possession of Pogue’s negroes, and their descendants since his'death, by Pogue’s widow and those claiming under her,, before administration on said Pogue’s estate, can confer a right of property in said negroes, in said widow and her representatives, and those who claimed under her. Third.. That notwithstanding the jury may find, that Mrs. Pogue, widow of Daniel Pogue, and those claiming under her, are the heirs at law, under the laws of Kentucky, still this will not operate as a bar to the plaintiff’s right to recover in this action. These instructions were refused. The points growing out of these instructions, and which only it seems necessary to decide, are: First. Whether Mrs. Pogue, widow of the intestate, afterwards married to Chapman, could, by the laws of Kentucky, take the negroes by descent from her husband, in case there were at the time of his death, no father, mother, brother or sister, or their or either of their descendants, and no paternal or maternal kindred capable of inheriting from Pogue Second. If there were no such person capable of inheriting from Pogue, and the wife took by descent, whether she or the administrator be entitled to the slaves. Third. Whether the ad-(51) ministrator be not barred by the length of the defendant’s possession, even should he be entitled in the first place, to the slaves to be administered on.

First. Pogue died in Kentucky, and all his property must be distributed agreeably to the laws of the country where it was at the time of his death; it was in Kentucky when he died, and must thenbe distributed according to the laws of that State; and by the 28th section of an act of the General Assembly of the State of Kentucky,, passed 8th February, 1798 : — .All negroes, &c., shall be held, taken and adjudged to be real estate, and shall descend to the heirs and widows of persons departing this life, as lands are directed to descend in and by an act of the General Assemby, entitled, an act directing the course of descent.” By the 14th section of which act it is provided, that where for the want of issue of the intestate, of father, mother, brothers, sisters and their descendants, if there shall be no paternal or maternal hindred, capable of inheriting, on the one side or the other, the whole shall go to the wife or the husband of the intestateboth sections of these several laws appear on the bill of exceptions, to have been given in evidence. The slaves, then, in this case would descend to the wife. This point is ruled for the defendant. Second. The administration being granted in Missouri, and the property found here, it certainly,, under our own laws, goes to the administrator to be by him disposed of as shall be directed by the laws of Kentucky. This point is then ruled for the plaintiff. Third. The defendant depends on his long and undisturbed possession. Of all the cases cited by the defendant that of Brent v. Chapman is the strongest. Chapman brought an action of trespass against Brent, for taking in execution on fi.fa. against the estate of Robert Alexander, deceased, a slave named Ben, claimed by Chapman as his property. Judgment was given for the plaintiff, and on error that judgment was affirmed in the Supreme Court of the United States. These are the-facts of the case : The slave was the property and in the possession of the late Rob-, eit Alexander, the elder, at the time of his death : his sons, Robert and Walter S.,. were named executors of his will, but never qualified as such. On the 11th December, 1803, Walter S. took letters of administration with the will annexed. No division was ever made by the order of any Court of the personal estate of the deceased among his representatives, but previous to August, 1800, a parol division of the slaves was made ; Robert Alexander theyounger, and Walter S. Alexander, the latter (52) being then under the age of 21 years, Robert A. being possessed of the slave and being taken on execution for debts due from himself in his individual character, in August, 1804, took the oath of insolvency under the laws of Virginia, and delivered up to the Sheriff' the slave, as a part of his property included in his schedule. The Sheriff sold him at public s'ale, and the plaintiff knowing the slave to belong to the estate of the deceased, Robert Alexander, as aforesaid, became the purchaser for a valuable consideration, and tookipossession of the slave and continued in possession, under the sale and purchase, until July, 1806. Dunlap & Co. obtained judgment against Robert A., the younger, as executor of his father Robert A.; and upon ft. fa. issued on that judgment, the Marshal seized and took the slave as part of the estate of the testator Ii. A., there being no pioperty belonging to the estate in the county, which could have been levied on, except what R. A., the younger had sold and disposed of for the purpose of paying his oum debts. The Supreme Court of the U. S. decided that the possession of Chapman, the plaintiff, gave him a good title t.o maintain his action on the same principle that the defendant may protect himself, under that length of possession under the statute of limitations, notwithstanding there was no- executor or administrator of the deceased to be sued, and the plaintiff knew the slave belonged to the estate of R. A., deceased, and not to R. A., the younger, for the payment of whose debts the slave was sold, when Chapman, the plaintiff, became the purchaser.

The Chief Justice, in delivering the opinion of the Court, said, the only objection of any weight, was, that there was no administration upon the estate of R. A., sen., and consequently, that the possession of Chapman was not adverse possession. But there was an executor competent to assent, and who did assent to the legacy and to the partition between the legatees, and who could not afterwards refuse to execute the will. We may further add, that the creditors of R. A., deceased^ might, on the neglect of the executors, have taken out letters of administration. The case before this Court is somewhat different. Pogue, the intestate, died in Kentucky;; and in less than, than two months the widow removed to a distant country, before one eould reasonably suppose there could have been any administratisn of the- estate, agreeably to the laws of any civilized country. When this cause was before-this Court on a former occasion, no evidence of the laws of Kentucky was preserved, and it was insisted, in argument, that ought not to entertain any sus(53) picions against the rights of the defendant, because, for any thing known to- the Court, administration might have taken place there in a very short time,, or no administration might have been necessary £ but the Court then- thought that enough had been proved to throw the burthen of proof on the defendants. In addition to the evidence before the Court at the May term- of last year, there are now several statutes of the State of Kentucky, bywhich.it appears that the widow of Pogue might probably be the legal owner of the slaves in question, after Pogue’s death, and if so, the children would take under their father’s will. The case of the defendants certainly appears more favorably now than it did at the formertrial ; and this Court is so little disposed to disturb the long and uninterrupted possession of property, that it would, perhaps, after such a length of possession as has been proved, have been inclined to leave it to a jury to presume an administration of Pogue’s estate, had the widow remained even six months in Kentucky. The authorities cited by the defendant all require that the title by possession should have been acquired without force or fraud; and although the possession of the defendant was acquired by lawful means, yet it must be remembered that his testator’s right was derived through the widow of Pogue, and all claiming under her must be affected by her acts. It is true, that if there be no debts due from Pogue, the widow, being probably entitled under the laws of Kentucky, to take the property, it would be very vexatious to pass over all this property to the administrator, merely to entitle him to his compensation, when the consequence will be, that all the estate must be again distributed among persons now holding it. This case is put under the.impression that Pogue may have no relations entitled to take before the widow. If it were possible to suppose a man so mischievous as to be willing to undertake such an adminis^tration merely to harass the defendant, still we have no power to require him to give proof of the existence of any demands against the estate : but we are not justified in supposing so extraordinary a case may often exist; and where any latitude in the construction of laws is allowed, the Court must be guided by circumstances of more probable occurrence. Should, however, the County Court, on the settlement of accounts of the administrator, find that there is reason to believe that he undertook the administration merely for the purpose of vexation, lie is somewhat in the power of that Court. It has the power of restricting him to very moderate compensation, and would probably do so.

(54) By the 29th section of an act of the General Assembly of the State of Kentucky, entitled an act directing the course of descents admitted by both parties in the bill of exceptions to be the law of Kentucky, negroes may be taken in execution for the payment of debts. Without resorting to the decisions of the Kentucky Courts to show that the administrator would have the right to the slave of his intestate to satisfy debts, we are satisfied that our own laws would give the administrator the disposition of any of Pogue’s property which by the law of Kentucky is subject to execution to pay his debts. It has been contended also that our law allowing letters of administration on the estate of persons dying abroad being passed long since Pogue’s death, cannot act retrospectively so as to give the administrator a right to the property of Pogue. This argument appears to be entitled to very little authority. Administration is not granted to advance the interest of the administrator. It is done for the purpose of securing the property of the deceased to the rightful owners; and the administration of an estate is so troublesome an office, that it is very seldom sought after by well disposed persons : and the community is under obligations to. any honest man that will undertake such an office. Suppose for an instant that there never had been any law in Missouri to authorize letters of administration on the es^ tates of intestates; and that the Legislative body in actual session should pass such a law as we have now in force, would it be reasonable to suppose that the estate of a man who died yesterday intestate, should be the prey of any unprincipled person who might choose to seize on it, while an infant orphan might be left without the means of subsistence. The right of the administrator in such a case could not divest that of the legal heirs, but would be in support of them. This point, t^en, is ruled for the plaintiff.

The plaintiff’s first, instruction seems, then, to have been rightly refused. His second instruction was of so general a character as not to be necessary in this case, and if necessary, it would have been, perhaps, properly given against him. His third instruction should have been given. The first instruction prayed for by the defendant was properly given; but the second should have been refused.

The judgment of the Circuit Court is reversed, and the cause must be sent back for further proceedings.

Wash, J.,

dissenting.

I dissent from the opinion given above, upon the ground that the possession of the .defendant, (from analogy to .the statute of limitations) should not be divested by adjmimstration.


author: Wash, J.,

text:
    Cornelius v. M’Donald.
    In an action of debt for 10,000 feet of plank, to be delivered at a certain time and place,-held, that no demand was necessary, and that the defendant might show a readiness on his part to deliver, &c. (Note a.)

    ERROR from the Franklin Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was originally an action of debt, brought by M’Donald against Cornelius, before a Justice of the Peace, founded upon the following instrument in writing: On or before the first day in August next, we or either of us promise to pay John M’Donald 10.000 feet of good merchantable pine plank, delivered at our mill, as witness our hands, this 19th day of June, 1825. (Signed) John R. Robertson [Seal,] Absalom Cornelius [Seal.]” On the trial before the Justice, M’Donald had judgment, from which Cornelius appealed to the Circuit Court; upon trial de novo, M’Donald offered the above instrument of writing in evidence, and proved the value of the plank at the time and place specified in said instrument, but did not prove any demand whatever of the plank mentioned, either at the mill or any other place, and obtained judgment; to reverse which Cornelius prosecutes his writ of error in this Court. The error assigned is general. The point relied on is, that the Circuit Court erred in refusing to instruct the jury that the plaintiff had not shown himself entitled to recover, for the reason that he had not proved any demand of the plank, or want of readiness,” &c. The -doctrine in relation to such property contracts, as well as the contracts themselves, are pretty much the growth of the western country, and have sprung up amongst a people whose character and circumstances are peculiarly that of a trading and traffidng people. In settling the principles of law applicable to such contracts, policy would dictate conformity to those governing money contracts, where reason and the obvious intention of the parties do not forbid iti In Kentucky, such contracts were in early times very common, and we find many cases in their reports, some of which seem a little contradictory.

In the cases of Letcher v. Taylor, and Chambers v. Winn, (in note,) Hard. p. 80, the contracts were for the payment of property on demand, without naming a place. The declaration stated a demand at the county, &c., and the Court held that a demand at the residence of the obligor was necessary: which the plaintiff ought to alledge (56) and prove. The case of Welmouth v. Patten, 2 Bibb, 280, is v/here no place for the payment or delivery of the property was named, and the Court decided “ that a demand at the obligor’s residence must be averred, &c.” On a contract in England for the delivery of cumbrous property, where no place had been named, it is held -to he the duty of the obligor to wait on the obligee, and know of him where he will receive the property, and to tender the property on the day at the place appointed, &c. But upon contracts payable at a time and place stipulated and expressed, it has been held that no special demand is necessary, and so the Court of Appeals in Kentucky have decided in the case of Grant v. Grashon — Hard. Rep., p. 85 — and sundry cases there cited. The case of Shrewsbury v. Buckley, 4 Bibb, 260, was on a covenant for delivery of 6,000 bushels salt at their (the obligor’s) furnace on the Kenawha, in good and sufficient barrels, well packed and nailed 3 one thousand bushels thereof per month, for six months thereafter, &c.; in which the Court held that no demand was necessary, and that the defendants might show a readiness on their part to deliver, &c. This is believed to be the correct doctrine on the subject; it imposes no hardship upon the defendant, or obligor, if the property was, in truth, ready at the time and place, to plead and prove it — whilst the contrary doctrine might subject the plaintiff or obligee to much trouble and expense in making a demand which he knew before hand could not or would not be satisfied.

The judgment of the Circuit Court is, therefore, affirmed, with costs.

(a.) See Martin v. Chauvin, 7 Mo. R., 280.


author: Tompkins, J.,

text:
    M’Nair and others v. Lane.
    1. The Supreme Court may award execution; to carry into effect their decisions.

      2. It is no variance from the judgment, for the Clerk to blend in the execution, the interest, damages, and costs. (Role a.)
    3. Under a proceeding by attachment, the plaintiff may dispense with bail, on the appearance of the defendant.
    ERROR to St. Louis Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This was an action of ejectment, commenced in the St. Louis Circuit Court, by the defendant in error, for the recovery of a house and lot, situate in the city of St. Louis.

Upon the trial in the Court below, the plaintiff produced a witness to prove that the defendants claimed title to the premises in question under a certain William Schlater. The plaintiff then produced and gave in evidence the record of a judgment in favor of Theodore Hunt, against said William Schlater, and of the execution issued thereon, and of its return. By this record it appears that Hunt commenced an action against Schlatter by attachment.

It was agreed by both parties, that the defendant might appear and plead, without giving bail, and that the attachment should not be dissolved. Schlater, the defendant, accordingly appeared and pleaded; and on the plea of the non-assumpsit, a verdict was found, on which a judgment was rendered against him.

This case being brought into this Court by a writ of error, this Court affirmed the judgment of the Circuit Court; and an execution, on the judgment here given against (58) Schlater, was issued against his goods, &c., generally. The defendants in the case now before the Court, offered in evidence a copy of a deed executed by Schlater to some of the defendants, which was rejected by the Circuit Court, because the reasons for the absence of the original were thought insufficient. Judgment was given for the plaintiff, to which the defendants, now plaintiffs in error, wish to reverse, and assign for error : —

Eirst. That the Circuit Court admitted the record of the Supreme Court, in the case of Hunt v. Schlater, to be read in evidence.
Second. That Clemons, a witness, was admitted to prove the title of the plaintiffs in error, under Schlater.
Third. That the Circuit Court refused to permit to be read in evidence the copy of the deed from Schlater to the defendants.
Fourth. That the Circuit Court refused instructions prayed for by the defendants.
Fifth. That the Circuit Court admitted in evidence, the deed of the Sheriff to the plaintiff, defendant in error here.

On the first error assigned, it is contended that,—

First. That the judgment rendered by this Court, in the case of Hunt v. Schlater, was void, because the judgment in the Circuit Court remained in full force, unaffected by the writ of error, and upon that writ the Court had no further jurisdiction of the cause than is given by the statute. By 50lh section of the law regulating "proceedings at law,” the Court is required to examine the record and to award a new trial, reverse or affirm the judgment or decision of the Circuit Court, or to give such judgment as the Circuit Court ought to have given, as to them may seem according to law. This Court, it is contended, has only an authority to give judgment in cases where the judgment of the Circuit Court is erroneous, but where that judgment is affirmed and in force, the Circuit Court alone can grant execution of its own judgment. By the 52d section of the same law, it is provided that in all cases of appeal on writs of error, decided by the Supreme Court, the Supreme Court may order the record in the cause, with the decision and determination thereon written, &c., to be transmitted to the proper Circuit Court, &c., and such decision and determination shall be duly carried into execution by such Circuit Court, or the Supreme Court may award execution to carry the said decision and determination into effect.”

By the last cited section, ample powers seem to be given to this Court, and not (59) without reason. The execution, too, a link in the chain of the title of the defendant in error, as necessary as the Sheriff’s deed, it is contended, varies from the judgment so materially that it cannot be said to have issued on that judgment.

The judgment is for §1791 72 damages adjudged by the Circuit Court, with interest thereon amounting to $52 28, and $89 58 for further damages sustained by reason of the said debt, (meaning the sum adjudged by the Circuit Court,) together with costs. The execution is for the same sum adjudged by the Circuit Court, for $141 86, for his further damages and interest by reason of the detention of the said debt, and $57 71 for his costs. We think this is no variance. The Clerk has used a discretion in adding together the damages and interest allowed in the judgment; had he made a mistake it might have been corrected, but none is made; he has also very properly ascertained the amount of costs, and inserted them separately in the execution. The law allows him to ascertain the amount of costs and to add them to the damages, for the purpose of making out an execution, which is conceived to be a greater liberty than he has here taken. The form of the execution given in the act is: Whereas, A. B., &c., hath recovered against C. D. for debt or damages, (as the case may he,) and also the sum of-, which to the said A. B. were adjudged for his damages, as well by reason, &c., as for his costs in that suit expended, &c.” In the case before the Court, the Clerk has even been more exact than he was required by the law; he has indeed added together two sums ascertained by the Court, but he has not blended the amount of the costs with that of the damages and interest, as he well might have done, consistently with the form here given in the statute, for it has not been pretended that the law requires the Court to tax the costs before judgment is rendered.

It is also contended that the execution, is void, because the attachment, by agreement of parties, remaining-undissolved, execution could go only against the property attached: to this it is answered, that proceedings by attachment are only allowed against absent and absconding debtors. The plaintiff in the Circuit Court might well dispense with bail on the appearance of the defendant: it is merely personal to him, for had he agreed to take a pauper for bail, the Court could not have objected. Idle then would it be to say, that the Court should have taken bail, notwithstanding the agreement of the parties.

But when the party appears and pleads, it is the law that directs the judgment (60) which is to be given, and not the agreement of the parties.

It was objected also, that the Sheriff’s deed did not recite the execution correctly,. viz : that it corresponds neither with the execution given in evidence, nor with the-judgment.

The execution recited gives the number of cents less than one dollar, in the form, of a fraction of dollar, for instance: The sum adjudged by the Circuit Court is thus, expressed: one thousand seven hundred and ninety-one dollars and seventy-two» centsand in that recited in the deed, after writing the number of dollars, the number of cents is thus expressed: 72-100 dollars. We think this a distinction without difference.

The other errors assigned appear to us to have been well abandoned, both in the, written argument and in that at the bar.

The judgment of the Circuit Court is affirmed.

(a.) See Wash v. Foster, 3 Mo. R., p. 205.

       Absent, Judge Wash.


author: M’Gikk, G. J., Tompkins, J.,

text:
    Cowden v. Elliot.
    A debt due to a defendant as a surviving partner, may be set off against a demand upon him in his own right, and so vice versa.

    ERROR from the Circuit Court of St. Louis.
   M’Gikk, G. J.,

delivered the opinion of the Court.

Cowden brought an action of debt against Elliot, on a bond given by him to Cow-den and one Sanderson; the declaration shows that Sanderson was dead before the action was brought. Elliot put in a plea of set-off, alledging that Cowden and one Keene were jointly interested in the navigation of a boat, and that Cowden, as such part owner, employed him to navigate the boat. Issue was taken on this plea. At the trial, Elliot proved his plea exactly, and the Court decided that the evidence was insufficient in law to enable him to claim a set-off under the plea.

It is clear that the Court considered this matter as on a demurrer to the plea, and in that way held that Ihe matter of set-off could not be allowed. The proof must fit the allegation ; in this case it did do so, and the Court did wrong to exclude (61) it. But as the argument of the counsel, and the opinion of the Court, turned on the point whether in this ease the matter of the set-off could be allowed by law, I will endeavor to meet the point.

It is objected that Elliot’s demand wants mutuality, and that it is a joint demand against Cowden and another, and therefore cannot be set off. To prove the position correct, 6 Sac. Jlbr. 136 is cited. 'No doubt this is correct doctrine, according to the decisions under the British statute; it is correct as a general rule; yet I consider it to admit of some modifications. By two cases, if not more, decided by the British Courts, I find in the above cited page of Bacon this doctrine: That a debt due to a defendant as a surviving partner, may be set off against a demand upon him in his own right, and so vice versa. To prove this, Slipper v. Stedstone, 5 T. R. 493, ar.d Trench v. Andrede, 6 T. R. 583, are cited. I have looked into the cases and they fully support the point.

These cases show that although the demand was at one time in a condition that it could not be set off, yet when it became a sole or separate demand by the death of a partner, it might be set off. But this matter all aside, I am most clear that this demand of Elliott may, under our statute, be set off'. The .statute says, page 738 of the Revised Code: that if two or more persons be mutually indebted to each other by judgments, bills, bonds, bargains, &c., and one of them commence an action, one debt may be set off against another, notwithstanding such debt may be deemed in law of a different nature. The statute requires that the debts should be mutual. The meaning of this is, that A., the plaintiff, should be indebted to B., the defendant, and not that A. should be indebted to B. and another jointly; but by the above case cited from T. R. if one of the debts was a joint one, and by the death of one of the obligors or obligees, it became the sole debt of the other, or a sole right of a surviving obligee, then it may be set off. Our statute has done the same thing the eommon law would' have done;, where one of the joint obligors is dead.. In that case' the whole obligation would survive against the surviving obligor, and it would be a. sole demand against him. By the fourth section of the act defining the effect of contracts, Bev. Code, 215, it is declared that all contracts which were by the common, law deemed joint, shall be deemed'joint and several'to all intents and purposes. And by the latter clause of that section, it is declared that all joint assumptions of co-(62) partners and others may be sued on separately.

It seems to me to be clear that this demand against Cowden was his sole debt to all intents and purposes, though the other partner was also liable. If it was a several demand against him, it may be a set-off;. the mutuality required by the law would exist.

The judgment of the Circuit Cburt is reversed, and sent back for a new trial..

Tompkins, J.,

dissenting.

Cowden, survivor of Sanderson, sued Elliot on a note made to Cowden and Sanderson by Elliot. Elliot sets up a demand which he has against Cowden and ICeene, and claims a set-off. By the act regulating set-off, if two or more persons be mutuelly indebted to each other by judgments, bills, bonds, bargains, promises, accounts or the like, and one of them commence an action in any Court, one debt may be set off against the other, notwithstanding such debts- may be deemed in law of a different nature.”

At common law, if the plaintiff was as much or more indebted to the defendant than the defendant was indebted to him, yet lie had no method of striking a balance, the only way of obtaining relief was to go into a Court of Equity. 7,’o remedy this inconvenience, the several statutes of set-off were passed in England. Under these statutes it has often been decided that a joint demand cannot be set off against a separate demand, and that a separate demand cannot be set off against a joint demand ; for tile demands are not mutual, and at common law the action must be brought against ail tho joint obligors: therefore,, if A., sue B. on his-bond for §100, B. could not set off the bond of A. and C. made to B. for the same sum, because lie could not have an action against A. alone on tho joint bond of A. and C.

But by our act defining the effect of contracts and promises from and after 12tb. February, 1825, all contracts which by the common law are deemed joint, shall be construed to be joint and several to all intents and purposes. ■

B. then can sue A. alone on the joint obligation of A. and C. to him, he may then have this joint demand against A. and C. set off against the separate demand of A-against himself, and.there is no injustice in it j-for at common law oven A. was liable to B. for the whole demand..

But if A. and-C. had sued B. oil his obligation to them, it does not follow that B-can set off a separate demand against A. Our statute gives B. no right to sue A. and (63) C. on a bond executed to him by A., although he may have executed his bond to them for any sum of money. If,.then, B¡ have no right to sue A. and C. on the bond of A. made to B., what right has he to set off his demand on A. against the-demand of A. and C. But suppose, as in the case before the Court, C. were dead, and A. were to sue B. on the bond, .suggesting the death of C., what would then, have been the remedy of B. before, the enactment of the statute of set-off? He. would have gpnejnto a.Court of Equity and prayed that he might be allowed to aaí¡ off against the demand of A., survivor of C., so much of his demand against A. as. would balance the interest of A. on the bond on which he, A., as survivor of C.,, had sued B., and such relief and no more would have been given him. A Court of Law, then, if it were to allow a set-off in such a case, could dono more than a Court of Equity. But it appears to me that a Court of Law ought not to allow a set-off" in such a case, for it has not the same means of ascertaining A.’s interest in the bond as a Court of Equity has. The case before the Court is even harder than the case which I have stated ; for Elliot claims to set off not a separate demand against Cowden, but a joint demand against Cowden and Keene — thus making the estate of Sanderson not only pay the debts of Cowden, which Sanderson never promised to do either directly or indirectly, but also the debt's of Keene- It seems to me that the act defining the effect of contracts and promises, was intended only to affect the remedy against joint obligors or promisors, and that the law of set-off can be no otherwise, changed by- it than to allow a defendant to set a joint demand off against a separate one.

The laws of set-off was certainly never intended to give a defendant rights against a plaintiff, against whom he could have recovered nothing before the enactment of' that law; two cases from Term Reports have been cited, neither of which seems to. me to meet the case. In Slipper v. Stedstone, from 5 T. Rep., the defendant sets off a demand due from plaintiff to defendant, and-another deceased against a demand due-from defendant to plaintiff; and in the case of French v. Andrade, from 6 T. Rep.. the defendant sets off a demand due from the plaintiff and a deceased partner to de-. fendant, against a demand due from defendant alone to plaintiff alone.

In each of the cases cited, the .plaintiff is liable to pay the whole demand set off, and there is no doubt but both in law and equity he,- has a right to appropriate his-(64) own separate demands against the defendants, in each case, to the payment of the demands set off against him. But in the case before the Court, has he, in law or equity a right to appropriate the interest of Sanderson’s representatives, in the writing sued on, to the payment of separate demands against himself? It is true, if he¡ were to collect the money due to himself, as surviving partner of Sanderson, and appropriate it to the payment of his own debts, that Sanderson’s representatives would have no remedy hut against him. Bat if' Sanderson, in his lifetime, were willing to trust to the integrity of Cowden to, pay over to him, or to his representatives after his death, his portion of the demand' against Elliot, this furnishes no reason to presume that he was willing that Elliot should appropriate the same demands to the payment of bjs (Elliot’s) demand against Cowden and Keene;, and without his assent, can even the legislative power itself appropriate his property to the payment of the demand of'Elliot against Cow.den and Keenp?. No assent, either express, or-implied, appears to; m.e to have been given.

To illustrate this case more fully; I will suppose that at the death of Sanderson there had been joint stock left, belonging;in equal portions to himself and Cowden, and will suppose that they had been partners in.trade, and that after the death of' Sanderson, Cowden absconds, and Elliot sues out an attachment to secure the same, demand against Cowden and Keene, hut finding no property of Cowden or Keene, he-finds exactly enough of the property of Cowden and Sanderson, deceased, to satisfy tile demand of himself against Cowden and Keene. It appears to me very plain,, that no more than the interest of Cow.den qould he-sold to satisfy the demand, and; it appears tp me equally as plain, that it would he as much a violation of law and; justice to allow Elliot to appropriate the demand of Cowden and Sanderson against himself, as the stock in trade of the same persons to the satisfaction of his demand against Cowden and Keene; and yet if Cowden wished, he could sell the joint stock in trade, and apply the money so raised to the payment of his own debts. I am inclined to think that the Legislature never intended to allow a set off where he could not have made the same party liable in a cross action for his whole demand. In the lifetime of Sanderson, Cowden and he must have joined in this suit, and no cross action could have been brought by Elliot for his demand on Cowden and Keene. The (65) justice of the case is not changed by the death of Sanderson, for his interest survives to his representatives.

For the reasons above given, I think the judgment of the Circuit Court ought to he affirmed.


author: M’Girk, C. J.,

text:
    Hempstead et al. v. Stone, Bellows et al.
    1. Where a declaration in assumpsit charges a joint contract, and the Court sitting as a jury, find that some of the defendants did assume, and others did not assume in manner and form, &e., and gave judgment for those who did not assume, and against those who did — held, to be error.
    2. Errors in the judgment of the Circuit Court, in departing from the pleadings or verdict, will be noticed by this Court, though no objection be made in the Court below.
    3. A former recovery may be given in evidence, on the plea of non-assumpsit.
    4. The declaration must alledge that all promised ; that the promise was a legal one at the time it was made; and that the demand was due and owing at the time of bringing the action. And the proof must support the allegations.
    ERROR from St. Louis Circuit Court.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of assumpsit, brought by Stone, Bellows, and Bostwick, against Pilcher, Drips, Carson, Woods, C. S. Hempstead, and Mary Lisa; the last, as executor and executrix of the last will of Manuel Lisa. The defendants all pleaded non-assumpsit. The Court, sitting as a jury, found, that Hempstead and Lisa did not assume in manner and form, &c.,-and that the other defendants did assume, &c. The declaration charges a joint contract. The Court gave judgment for the plaintiffs against those defendants who did assume, and for those .defendants who did not assume.

A writ of error is brought by those defendants who did assume. The error as-signed, is, that in this case, the declaration shows and alledges a joint contract, and that some of the defendants having had a verdict for them, there should have been-judgment for all. To prove that this judgment is erroneous, 1 Chity’s pleading 31, (66) is cited, where it is said, that in actions ex-contractu, against several, it must appear on the face of the pleadings, that their contract was joint, and that fact must also he proved on the face of the trial, and if too many persons be made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error ; but if the objection does not appear on the pleadings, the defendants may move for a non-suit.

To escape the consequences of this doctrine, the defendants in error insist, that the verdict and judgment are no part of the pleadings;' therefore, the objection cannot be looked into, and the defendants having failed to take advantage by non-suit, cannot now have any advantage.

I answer to this argument, that the objection is equally fatal, whether the error appear by the declaration, plea, verdict or judgment, if it be one which this Court can see the Court below expressly decided on. It is there argued, that this judgment and record does not show that the point was ever decided on in the Court below, and that the party should have moved in arrest of judgment. The act of the General Assembly, Revised Code, p. 634, says, no exception shall be taken in the Supreme Court, on any point, except that which lias been expressly decided in the Circuit Court. This Court has on several occasions held, that if there be an error in the judgment, in departing from the pleadings or verdict, that, though no objection be made, we will hold that it was an express decision; as if the action be in covenant, and the judgment be in debt.

It is next insisted, that a discharge under a bankrupt law may have discharged these parties : but there can be nothing in this, because, I understand that these matters must be pleaded by the defendant, so that in this ease, it could not have been legal testimony. It is also insisted, that a former recovery against Hempstead and Lisa, might have taken place, and might be given in evidence under the plea of nonassumpsit, and if it could by law have taken place, then we will suppose it was. proved.

It is true that a former recovery may be given in evidence on non-assumpsit, but that being true, by no means disposes of the question, what shall be done where a recovery is had against some of the joint promissors, and afterwards they and all the joint promissors are sued ? To prove that no joint action can afterwards be brought, the case of Robertson v. Smith et al, 18 John’s Reports, is cited. This case is the most satisfactory on the point that we have been able to find. It seems to corres(67) pond with other principles of law.

The declaration must alledge that all promised, and that must be proved, and the promise must be a legal one at the time it was made, and it must be owing at the time of bringing the action ; for if one has paid, a recovery can he had against none, and I see no objection in the decision in 18 John’s R., which decides that if the joint contract has been extinguished by a judgment against two, that as a joint contract it is gone at law against all,

The judgment is reversed.

      Absent, Wash, J.


text:
    State v. Stein.
    The act of the General Assembly, passed 19th February, 182S, which gires Justices of the Peace jurisdiction, m cases of breaches of the peace — held, to be repugnant to the Constitution of the United States and this State. (Note a.)

      IN ERROR.
   Tompkins, J.,

delivered the opinion of the Court.

Stein was indicted for an assault and battery in the Circuit Court of Jefferson county. He pleaded a former acquittal of the same offence before a Justice of the Peace; to this plea there was a demurrer Which was overruled by the Circuit Court, and to reverse the judgment of the Circuit Court this writ was sued out. By an act of the Assembly, passed the 19th February, 1825, jurisdiction in cases of breaches of the peace was allowed to Justices of the Peace, and the accused might he tried and convicted without a,previous indictment by a grand jury. The fifth article of the amendments to the Constitution of the United States, provides, among other things, that no person shall be deprived of life, liberty, or property, without due process of law: and the State Constitution, art. 13, sec. 9, declares that the accused cannot be deprived of life, liberty or property, but by the judgment of his peers, or the law of the land. Mr. Kent, in his commentaries on American law, says, that the right of personal security is guarded by provisions which have been transcribed into the Constitutions of this country from Magna Charta, and other fundamental acts of the English Parliament. We must then examine and find out the meaning given .by the English Courts and sages of the law to the terms used in Magna Charta, (68) and those other fundamental acts of the English Parliament, in order to ascertain the intention of the framers of the Constitution of the United States and of this State. The same author adds, page 9th of 2d vol. of his commentaries: It may he received as a self evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or disseized of his freehold or liberties, or estate, or exhiled or condemned, or deprived of life, liberty or property, unless by the law of the land or the judgment of his peers.” The words, fiby the law of the land or the judgment of his peers,” are the very words used by the framers of our State Constitution. Let us see then what is their signification in the country from which we have borrowed them. Mr. Kent continues, the words, by the law of the land,” as used in Magna Charta in reference to this subject, are understood to mean due process of law; that is, by indictment or presentment of good and lawful men. And this, says Lord Coke, is the true sense and exposition of these words.” Mr. Kent says, “ that the Constitution of the United States, and the Constitution of almost every State in the Union, contain the same declarations in substance, and nearly in the same language ; and we have seen that he concludes by stating it as a self evident proposition, that no man in these States can be deprived of liberty or property, but by the law of the land or the judgment of his peers; that is, by indictment or presentment of good and lawful men, a grand jury. This privilege is secured by the Constitution of the United States. But the frarners of our State Constitution, not content with the provisions of the Constitution of the United' States, have used terms more explicit than those used in the Constitution of the United States, and they have used language, too, in expressing their intentions, which is clearly and correctly understood. But it is provided in the statute, that the accused may, if he chooses, be indicted and tried in the Circuit Court, and that if tried before a Justice of the Peace under the statute, it must be by consent. To this it may be answered, that, where the Constitution has denied jurisdiction, his consent cannot give it. It is the opinion of the Court, that the act giving such jurisdiction to Justices of the Peace, is inconsistent with the privileges secured by the Constitution of this State to the citizen, and that it is therefore so far void, as its provisions are inconsistent with the Constitution.

The judgment of the Circuit Court is reversed.

N. B. The bar would not argue this case: for the authorities cited, the Court is (69) indebted to Mr. Hunt, Circuit Attorney of 2d Judicial Circuit.

(a.) See The State v. Ledford, 3 Mo. R., p. 102.


text:
    Bennett v. O’Fallon, ex’r. of Stokes.
    1. After a decree for alimony, the husband is not chargeable for debts contracted by the wife.

      2. Persons dealingwith a married woman, who lives separate and apart from her husband, do so at their peril.
    ERROR from the St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action of assumpsit brought by Bennett against the defendant as executor of Stokes, to recover the value of goods sold to the wife of Stokes, and for her board and lodging. The hill of exceptions states that it was proved on the part of the plaintiff that Marianne Stokes \vas the lawful wife of said testator. That said testator came to the Territory of Missouri in the year 1819: that his wife came to to the State of Missouri early in the year 1821: that said testator, on her arrival, refused to acknowledge her as his wife, and denied her all means of support: that said plaintiff furnished her with board and lodgings for three months in said year, ending, on the 25th of September: that afterwards, on the 21st October, in said year, said plaintiff sold to her a variety of household articles, amounting to the sum of two hundred and sixty-five dollars: which articles were not delivered until the month of November following.

Upon the part of the defendant, it was proved, that in the year 1821, said Marianne brought suit against her husband for a divorce a mensa et thoro. and such proceedings were therein had, that on the 9th day of October, in the year 1821, it was decreed by the Circuit Court of the county of St. Louis, that said testator should pay to the said Marianne, the sum of eight hundred dollars per annum during the pending of said suit, to be paid in quarterly instalments of $200 each, the first instalment to be paid on the 1st day of November then next following, which was paid.

Upon this stale of facts, the cause was submitted to the Court setting as a jury, who gave judgment for the sum of fifty-two dollars eighty-seven and a half cents, the (70) amount of boarding furnished to said Marianne ; and as to the other sum of two hundred and sixty-five dollars, the Court did declare its opinion to be that the articles furnished by the plaintiff to the wife of Stokes were necessaries, but that in consequence of the decree for alimony aforesaid, the said testator was not liable therefor. To reverse this judgment, the plaintiff now prosecutes his present writ. The only question raised, is, whether the executor of Stokes is liable for tire articles sold by Bennett to his (Stokes’) wife. For the plaintiff it has been urged, that Stokes’ wife had as much right to charge her husband for necessaries, after the decree, and before the payment of the instalment, as before the decree.

That the wife was not liable, (see 5 Term Rep., 679,) and unless the plaintiff could make the husband pay, (in such a case,) lje would be without remedy. The case in 11 Johns. Rep., 281, M’Cuthen v. M’Gahay, is a full answer to this argument, and lays down the law correctly.

A person who deals with a married woman living separate from her husband, is bound to make inquiries and ascertain whether, under the circumstances, her husband will be chargeable for the articles furnished. He gives her credit at his peril. The •very object of the decree for alimony, is to furnish the wife with necessaries, and the Court will take care that it be made effectual for that object, and suited to the condition of the parties.

By the decree, the husband is charged directly with the due maintenance of his wife} to make him responsible to persons with whom she might afterwards deal, would bs to charge him indirectly for the same object.

The judgment below must b.e affirmed with posts,,