text:
    Bolton, Appellant, vs. Lansdown, Respondent.
    X. The provision in the practice act of 1849, that after the lapse of five years from the entry of judgment, an execution may be issued only by leave of the court on motion, with notice to the adverse party, applies to judgments rendered before the passage of the act, as well as subsequently.
    2. It applies where an execution was sued out within five years, if five years have since elapsed.

      Appeal from, Cole Circuit Court.

    This was a motion to quash an alias execution issued in 1854 without leave of court, upon a judgment rendered in May, 1847. It appeared that an execution issued upGn the judgment in 1847 which was returned, unsatisfied, and that no execution had since issued until the present. The motion to. quash being sustained by the Circuit Court, the plaintiff appealed.

      Gardenhire, for appellant.
    1. The first and second sections of the 18th article of the practice act of 1849 only apply to actions subsequently brought. (See 1st section of 32d article of same act.) Even remedial acts never operate- retrospectively “without express words or declaration plain of' the intent of the legislature.” (1 Tucker’s Black. 3. 5 Monroe, 134. 83 Eng. Com. Law Rep. 249. 7 Johns. 477.. 4 Gillman, 221. 15 Maine, 129. Kent’s Comm.) 2. The 1st section of the 18th article only extends the common law period of a year and a day to five years, and the 2d section only substitutes a motion for the scire facias of 13 Ed. I.. If execution issued within a year and a day, and was returned^ not satisfied, a new action on the judgment, or a scire facias under 13 Ed. I, was unnecessary, (2 Tucker’s Blacks. 337-8,)• and there was no use of having continuances of the executions entered. (1 Mo. Rep. top p. 368. 6 Mo. 366. 9 Mo. 709.) So now, when issued and returned within five years, a motion is unnecessary.

      E. L. Edwards, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The words of the 2d section of the 18th article of the practice act, “ after the lapse of five years from the entry of judgment, an execution may be issued only by leave of the court on motion, with notice to the adverse party,” are general, without any limitation, and, of course, must be construed to embrace judgments existing at the time the act takes effect, as well as those thereafter rendered, unless there be some sufficient reason for putting a more limited construction upon them. The provision of the 32d article, that “ the act shall not apply to actions brought before it takes effect,” is referred to for this purpose, but cannot have the effect, unless we extend the meaning of the word action” beyond its ordinary signification. It is said in Bacon’s Abridgment, (1 vol. 46, note b,) <{ the suit, till judgment, is properly called an action, but not after, and therefore, a release of all actions is regularly no bar of an execution. (Co. Lit. 289, a. Roll. Abr. 291.)” It is thus seen that, in order to limit the general provision of the 2d section of the 18th article, so as to exclude cases falling within its ordinary meaning, we are asked to extend the words of the 32d article beyond their proper signification. We see no reason for doing so. The rule that laws are applicable to future and not to past transactions — (l nova constitutio futuris formara imponere debit non preteritis” — to which we have been referred by the counsel for the appellant, has no application to this case, or, rather, there is no violation of the rule here. This is a regulation for future transactions, a new rule to be thereafter observed in suing out executions upon judgments ; and, in order that the law may be uniform, the same rule is applied to all judgments, without any reference to the time when they were obtained, whether before or after the act took effect, or to the manner in which the suits were conducted that resulted in the judgments, whether according to the old or the new forms of procedure. Existing remedies for the future enforcement of all judgments, no matter when obtained or under what form of procedure, are thereby modified according to the wisdom of the legislature ; but no rights are touched in the slightest manner. The power of the legislature to pass such laws cannot be doubted, and is very frequently exercised, and we see no ground to question the propriety of it in this instance, even if that were a proper subject for our consideration.

It is argued, however, that even if this new rule be applicable to old judgments, it ought not to be applied in any case where an execution has been sued out within the five years, in analogy to the old law, and that an execution having been here taken out within a year after the date of the judgment, the statute ought not to be applied. We think otherwise, and do not consider ourselves at liberty, in this manner, to defeat the clearly expressed will of the legislature. At common law, no execution could bo sued out upon a judgment after the expiration of a year and a day, unless an execution had been taken out within that time and returned, and other executions had been regularly sued out and returned from term to term, down to the last term; the lapse of a year, under such eircumstances, raising a presumption that the judgment was satisfied. (2 Tidd’s Pract. ch. 41, p. 1081 ; ch. 48, p. 1154, 1155. 2 Bac. Abr. tit. “ Execution,” letter H.) Even a scire facias could not, under such circumstances, be sued out upon a judgment in a personal action, as it could upon a judgment in a real action; but the party was put to a new suit upon his judgment, and it is this that was remedied by the statute of Westm. 2, 13 Edw. I, allowing a scire facias in such case. (2 Bac. Abr. 693, 728, 729. 2 Tidd’s Frac. oh. 43, p. 1152-1154.) This presumption of payment, from the lapse of time, was reasonable enough, and so was the ground upon which it was met and repelled, as the matter stood originally, and as long as the executions were, in fact, regularly taken out in good faith, with a view to enforce the payment of the judgment, and returned unsatisfied, from term to term, down to the last term ; but when this ceased to be the case, and in lieu of a real proceeding, a mere form was substituted, an award of execution upon the roll, and even this form itself was dispensed with, (Dowsman v. Potter, 1 Mo. Rep. 518,) the ground of the presumption was gone, and the presumption itself ought, perhaps, to have ceased with it. (Seymour v. Greenville, Carthew’s Rep. 283.)

Certainly, however, we ought not to adopt this worn out rule in the construction of a new statute, which, after extending the year to five years, prohibits the issuing of any execution after that period, unless by leave upon motion, after notice to the adverse party. We cannot, and ought not, in this manner, partially repeal the statute, by declaring that the prohibition does not apply to a case like the present, where an execution has been sued out within the five years, although more than five years have since elapsed without any proceeding upon the judgment.

Let the judgment be affirmed ;

Judge Scott not sitting.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Sanders, Appellant, vs. Anderson & others, Respondents.
    1. In a petition on a note signed " steamboat Ben Lee and owners, by W. R. W.} captain,” it is sufficient to aver that the defendants were bound, without stating the facts upon which their liability depends. (See # Brother v. Cox, 16 Mo. Rep. 166, affirmed.)

      %. A note signed by matter of description, by which the promisers can be ascertained, is a valid note within the act concerning bonds and notes. (R. C. 1845.)

      Appeal from Taney Circuit Court.
    'This was an action by the assignee against Anderson and otheis, upon a note, signed “ steamboat Ben Lee & owners, by W. R. Wilson, captain.” The petition stated that tbe defendants, “ by their promissory note thereto” annexed, promised to pay, &c., and that the note was assigned to the plaintiff, and contained no further allegations. Judgment being rendered against the defendants for want of an answer, they appealed.

      E. L. Edwards, for appellant.

      F. P. Wright, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

In See & Brother against Cox, (16 Mo. Rep. 166,) it was held that, “ in suing upon a promissory note, it was not necessary to specify by what name the party bound himself ; but that it was sufficient to state the obligation generally, leaving the particular manner of it to the proof,” and we suppose there is no doubt of the correctness of this position. The petition in the present case charges that the defendants, by the annexed note, promised to pay, &c., and the allegation, therefore, as to the obligation of the defendants, is sufficient, if it were competent for them to identify and bind themselves in a written instrument, not by name, but by matter of description, such as is here used.

Individuals, as well as partnerships, it seems, may assume any name they please, and promissory notes, executed by them, in their assumed names, are obligatory upon them. ( Grafton Bank v. Flanders, 4 N. Hamp. 236.)

It is true, it was said of old, that, if one executed a bond in an assumed name, he must be sued in that name, and the bond would estop him, and that he could not be sued in his true name, alleging that he made the bond in the assumed name. (Field v. Winslow, Cro. Eliz. 897. Gould v. Barnes, 3 Taunt. 503. Linch v. Hook, 6 Mod. 225.) But it is presumed this would be otherwise under the new code of procedure.

The Touchstone, after stating, (ch. 12, p. 233,) that " the name of the persons in grants is set down on!/ to distinguish persons, and to make the person intended certain,” remarks, (p. 236,) “ where a grant doth intend to describe the person of the grantee by his proper name, and doth omit or mistake his Christian name or his surname, in this case, for the most part, the grant is void, unless there be some special matter to help it; and yet, if the grant do not intend to describe the grantee by his known name, but by some other matter, then it may be good, by a certain description of the person, without either surname or name of baptism.”

The same law is, of course, applicable to obligations — execu-tory contracts as well as grants ; and here, the promisors being ascertained and identified on the face of the instrument by matter of description — their ownership of the boat, which ought to be deemed sufficient, in commercial instruments at least — and the note having been signed by the captain, for them, is a valid note in writing within our statute, and obligatory upon the makers as an instrument.

There is no reason for reversing the judgment on the other grounds that have been suggested. The judgment is affirmed.


author: Scott, Judge,

text:
    Craighead, Appellant, vs. Wells & Nickel, Respondents.
    1. A case will not be reversed for the admission of evidence objected to, unless an exception is saved, nor for the admission of irrelevant evidence unless it was calculated to prejudice or mislead the jury.
    2. In an action for the breach of a contract to work for a specified time in California, in consideration of an outfit furnished, evidence of the value of the outfit is properly excluded, as it cannot affect the measure of damages.
    3. In such an action, a witness may be permitted to state what wages he received in California, as bearing upon the question of the value of labor there.

      4. Rebutting evidence is that which directly impeaches or weakens that offered by the opposite party, and not that which is merely cumulative, or the proof of the same things already proved by another witness.
    5. Infancy is a good defence to an action for the breach of a contract to work in California in consideration of an outfit furnished, although there hu3 been no offer to return the outfit.
    6. An instruction putting hypothetically to the jury facts of which there is no evidence, is erroneous.
    7. A party’s own acts and declarations are no evidence of his agency against the party for whom he assumes to act as principal.

      Appeal from Callaiuay Circuit Court.

    This was an action to recover damages for tbe alleged breach of an agreement under seal, by which the plaintiff contracted to furnish to the defendants “ one wagon and team (in conjunction with Alfred Bowman, part of said wagon and team,) and provisions for an overland trip to California," in consideration of which the defendants bound themselves, “ jointly and severally, to pay to said Craighead the one-half of all the net profit that they may make from the first six months’ work after they have gotten to work in the mines of California, or in other employment which they can make most profitable, counting the time so employed.”
    The petition alleged that the plaintiff performed the agreement on his part, and in conjunction with Bowman, provided a good and suitable wagon and team, and provisions sufficient for an overland trip, with which the defendants and Bowman started for California; and assigned for breaches on the part of the defendants that they abandoned the trip before reaching California, and failed to work in the mines there or pursue any other profitable employment.
    The defendants answered that the team furnished by the plaintiff was not suitable or sufficient, and was abandoned because unable to make the trip ; and that they were driven from the team by Bowman, under whose exclusive control, as his agent, plaintiff had placed it. The defendant, Nickel, also relied upon infancy as a defence.

      At the trial, the plaintiff offered evidence tending to show that the outfit furnished by him was entirely sufficient, and that the failure of the team was caused by the hard driving and ill usage of the defendants. Bowman, who was introduced as a witness for the plaintiff, testified that he owned one-fourth of the outfit, but was not the plaintiff’s agent, and had no more control over it than the defendants. After the defendants left him at Fort Kearney, he joined another company, and left the wagon behind, but took the cattle with him to California. In answer to a question on cross-examination, if he did not draw a gun on one of the defendants, he admitted that he did. This evidence was objected to, but the record shows no exception saved. The plaintiff offered to prove by this witness the value of the outfit furnished by him, but the evidence was excluded, and an exception taken. One of the plaintiff’s witnesses, in answer to a question on cross-examination, testified that be saw Bowman intoxicated on the road. This evidence was objected to as immaterial, but admitted, and an exception taken. The plaintiff also offered evidence tending to show the value of labor in California.
    The defendants then offered evidence tending to show that the cattle furnished by plaintiff were not old and strong enough to make the trip ; that Bowman was intemperate and abusive; that he exercised control over the team, declared that he was plaintiff’s agent, and finally ordered defendants to leave. The record shows that the declarations of Bowman, as to his agency, were objected to, but does not show that any exception was taken to their admission. There was no other evidence of Bowman’s agency. Ferre, a witness for defendants, was permitted to state what he got a day for working in California, to which plaintiff excepted. There was evidence that Nickel was a minor when the contract was made.
    At the close of the testimony for the defendants, the plaintiff offered by way of rebuttal additional evidence as to the sufficiency of the outfit, but it was excluded, and he excepted.

      The 2d instruction asked by plaintiff, and refused, was as follows :
    2. The time when the defendants were required to work in the mines of California, or pursue some other profitable employment while there, is not to be taken or construed to be the first six months after they may have arrived in California; but the true meaning and construction of their contract is, that they should commence and prosecute their said six months’ labor in the gold mines or other profitable employment, taking into consideration surrounding circumstances, as ordinary prudent business men would do in a similar case; and should they have attempted to work at a time or during a season when no prudent business man would attempt so to do, or should they attempt to work at times or under circumstances when they could not reasonably expect to make their labor profitable to themselves or plaintiff, the same ought not to be computed as part of the time during which they agreed to work.
    The fourth instruction asked by plaintiff, and refused, was to the effect that the defendant, Nickel, could not avail himself of the plea of infancy, unless he had returned or offered to return the property received under the agreement.
    The second instruction given for the defendants was as follows :

      " If Bowman was the agent of plaintiff, and as such had the possession of the wagon and team and provisions between here and Eort Kearney, the plaintiff is bound by his acts and declarations in reference to said wagon and team and provisions. And if Bowman, in such case, behaved himself so badly, and abused defendants so that they could not continue their journey with him, or drove them off from said wagon and team, without any fault of theirs, then the defendants were excused from the performance of their part of the contract, and the jury will find for defendants.”
    There was a verdict for defendants, and the plaintiff appeals.

      Morrow and Haydens, for appellant.
    Gardenhire, Jones & Hardin, for respondents.
   Scott, Judge,

delivered the opinion of the court.

1. The main point on which the appellant relied for a reversal of this judgment is not saved by the bill of exceptions. The evidence in relation to the agency of Bowman was objected to by the appellant, but it does not appear that he saved any exceptions to its admission.

The defence mostly relied on was, that Bowman, the son-in-law of the appellant, was his agent in the undertaking, and by his conduct compelled the respondents to leave his service. Evidence of the acts and declarations of this Bowman to prove his agency, were given in evidence, to which the appellant objected, but it does not appear that any exception was taken to the action of the court in admitting this evidence. The fact testified to by some of the witnesses, that Bowman was. intemperate in the use of intoxicating liquors, to which an exception was taken, may have been irrelevant, but its admission could not create such an effect as would warrant the reversal of the judgment. Matter may be irrelevant or impertinent, yet, if it is not of a nature to mislead, inflame or prejudice the jury wrongfully, its admission in evidence cannot be assigned for error.

2. There was no impropriety in excluding the evidence showing the value of the outfit furnished by the appellant, as that was not the measure of the damages sustained by him by the breach of the contract on the part of the respondents. For furnishing the outfit, the appellant was to be requited in services, to be performed in California. The value of those services was the standard by which the damages incurred by him were to be ascertained.

8. There was no error in permitting the witness, Ferre, to testify as to the amount he earned in California by the day. The amount earned by him was some evidence of the value of labor in that country.

4. The evidence in relation to the sufficiency of the team, offered by the appellant after the respondent had closed his case, was not rebutting evidence. Rebutting evidence is not that which is merely cumulative, or the proof of the same things already proved by another witness, but it is evidence which directly impeaches or weakens that offered by the opposite party.

We cannot say that the court erred in refusing to instruct, as was required by the second direction prayed by the appellant. In saying this, it is not our intention to convey the idea that the meaning of the agreement between the parties was, that the respondents should work for the appellant during the six months which immediately succeeded their arrival in California. Had the instruction prayed for contained this idea alone, which would have been sufficient for all the purposes of the appellant, we will not say it would have been unwarranted. But the instruction asked is not very easily understood, and as it professes to go on the equity of the thing, we are of the opinion it should have made some reference to the support and maintenance of the respondents, had they been compelled to remain idle after their arrival in California. Would they have remained in a state of idleness at their own expense, or at the joint expense of the parties to the contract?

5. There was no error in refusing the fourth instruction asked by the appellant, as to the power of disaffirming the contract in Nickel, by reason of his infancy; nor in giving the instruction in relation to infancy prayed by the respondent, Nickel. The rule that, if an infant avoids an executed contract, when he comes of age, on the ground of infancy, he must restore the consideration which he had received, has no application to the circumstances of this case. This is no executed contract. It is an agreement on the part of an infant to perform services in consideration of provisions previously furnished, and if infancy is not a good plea against a contract of that nature, it is not easy to see of what avail such a defence is in law.

We are of the opinion that the second instruction given for the respondents was erroneous. There was no evidence in the case which warranted the court in putting the question of agency hypothetically to the jury. The declarations of Bowman to that effect were not evidence that be was Craighead’s agent. The respondents, it is presumed, must have known Bowman. They had as much authority in conducting the adventure as Bowman, and if they yielded to his exactions or commands, however unreasonable, or suffered themselves to be driven away by his conduct, it is no reason that Craighead should suffer the consequences.

With the concurrence of the other judges, the judgment will be reversed, and the cause remanded.


author: Ryland, Judge,

text:
    Wilson et al., Appellants, vs. Brown’s Administrator, Respondent.
    1. An appeal lies from the order of a county or probate court approving an administrator’s sale of real estate.

      Appeal from Jasper Circuit Court.

    The case is stated in the opinion of the court.

      F. P. Wright, for appellants.
    No brief or appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

Hamilton, as administrator of the estate of Wm. Brown, deceased, made application to the county court of Jasper county, for the sale of lands of said estate, for the payment of debts. An order was made directing the sale of certain lands, or so much thereof as might be necessary for the payment of the debts of the estate.

The administrator made sale of the lands. Upon the presentation of his report of the sale, the appellants appeared in the county court, and filed their objections to the report. Wilson showed himself interested as a creditor, and Rickner and wife as heirs of the deceased.

Tbe county court overruled tbe objections, and approved tbe report. Tbe objectors then appealed from this order of tbe county court approving tbe sale by tbe administrator to tbe Circuit Court. In tbe Circuit Court, upon tbe calling of tbe case, Hamilton, tbe administrator, moved tbe court to dismiss the appeal, because no appeal lies from tbe judgment of tbe county court approving tbe report of an administrator’s sale of real estate. Tbe Circuit Court sustained this motion, dismissed tbe appeal, and rendered judgment against tbe appellants for costs. The appellants excepted to this decision of the court, filed their motion to set aside tbe order dismissing tbe appeal, -which, being denied, they excepted, and bring tbe case by appeal to this court.

1. Tbe only question in this case is, will an appeal lie from tbe order of tbe county court, approving an administrator’s sale of real estate, to tbe Circuit Court? If this question be answered in tbe affirmative, then tbe Circuit Court erred in dismissing tbe appeal. In tbe 8th article of tbe act concerning “ Administration, ” (R. C. 1845, sec. 1,) we find that “appeals shall be allowed from tbe decision of tbe county court to the Circuit Court, in tbe following cases” (after enumerating five classes, tbe sixth is as follows) : “On all orders for tbe sale of real estate or slaves.” Here is authority expressly on the subject. It will not do to limit tbe appeal to tbe first order made in regard to tbe sale — to the order directing tbe sale only, and not to any other orders made concerning such sale. We read tbe sixth clause thus : “On all orders concerning tbe sale of real estate,” and do not confine tbe right to appeal, to the order making it tbe duty of tbe administrator to sell. Before the county or Probate Court will order tbe sale of real estate, it becomes tbe duty of such court to order all persons interested in tbe estate to be notified of tbe application for such sale. Why is this done ? That persons interested may, if they think fit, be present to defend their interests. If tbe county court shall refuse to approve the proceedings and report of tbe administrator upon such sale, tbe proceedings shall be void, and a new sale may be ordered. (R. C. 1845, tit. Administration, art. 3, § 24, 33, p. 86, 87.)

The Circuit Courts have appellate jurisdiction from the judgments of the county courts, in all cases not expressly prohibited by law, and possess a superintending control oyer them. (R. C. 1845, tit. Courts — judicial power, p. 330.)

We then answer the question in this case in the affirmative, having not the least doubt that an appeal will lie in this case from the county court to the Circuit Court. In this opinion, we have confined ourselves alone to the one question. We do not intimate our opinion on the merits of the controversy, having nothing to do with that part of the case as it now stands before us. The judgment of the Circuit Court, dismissing the appeal from the county court, is erroneous, and must be reversed, and the cause remanded;

Judges Scott and Leonard concurring.


text:
    Middleton & Riley, Defendants in Error, vs. Frame, Plaintiff in Error.
    1. Under the practice act of 1849, a plaintiff may amend a petition incorrectly stating the Christian name of the defendant; and so in an attachment suit, he may make a similar amendment in the affidavit and bond.
    2. Where a debtor fails to designate the application of a payment, the rule is that the creditor may make the application.

      jError to Buchanan Circuit Court.

    Suit by attachment on three notes, signed H. T. Frame. The name of the defendant was stated in the petition, affidavit and bond as “ Henry T. Frame.” The writ issued against Iiiram T. Frame, and the sheriff’s return stated that it was levied on property of H. T. Frame. At the return term, Hiram T. Frame filed an interplea, claiming the property attached. On the same day, the plaintiffs were allowed to amend their petition by inserting Hiram T. Frame as the name of the defendant; and obtained leave to file at a subsequent day an amended affidavit and bond. After the amendment of the petition, defendant filed a motion to quash the writ and dismiss the suit, because no bond and affidavit had been filed as required by law. Pending this motion, plaintiffs filed an amended affidavit and bond pursuant to the leave granted. The defendant then moved to strike out the amended affidavit and bond, which was overruled. Exceptions were taken to the action of the court in allowing the various amendments and overruling defendant’s motions. After verdict for plaintiffs upon a plea in abatement, the defendant filed an off-set. The plaintiffs replied to the off- set, in substance, that the items mentioned in it had been received in payment of an account against the defendants, which had accrued since the execution of the notes sued upon. The instructions given at the trial are set out in the opinion of the court. There was a verdict for plaintiffs, and defendant sued out this writ of error.
    Loan, for plaintiff in error.

      Gardenhire, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The new code gives great latitude to the inferior courts in allowing amendments. (Art. 2, § 5.) “The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any respect material to the case, or by conforming the pleading or proceeding to the facts proved.” This entire article is devoted to mistakes in pleading, amendments and new trials.

Heretofore, the courts were loth to allow amendments in suits by attachments. Such suits were held to be of strict law. For the last twelve or fifteen years, the decisions of our courts have been much more liberal, and the acts authorizing the proceedings by attachment have, in some measure, been declared remedial and deserving of liberal construction. See Tevis, Scott & Tevis v. Hughes, (10 Mo. Rep. 381.) This new code declares that “ suits maybe brought by attachment in the cases, and conducted in the manner authorized by statute in such cases ; provided, that the pleadings and procedure shall be, as near as may be, according to the provisions of this act.” (Art. 5, § 15.)

In the opinion, then, of this court, the Circuit Court committed no error in allowing the various amendments in the proceedings before it. These amendments were not so made as to injure the defendant-. They were obviously designed to further justice, and to make a speedy termination of the matters in dispute.

The court gave the several instructions prayed for by the parties, which are as follows: “1. That if the jury believe from the evidence, that defendant furnished to plaintiffs the articles and money mentioned in the off-set, or any of them, they will allow him therefor the value thereof, as an off-set against said notes, if the same do not exceed the sum due by said notes ; if the value thereof exceeds the sum due by said notes, they will find in favor of defendant for such excess, unless the jury further find that said defendant, Frame, delivered said articles to plaintiffs in payment for an account that plaintiffs then held against defendant.”

“2. If the jury find that, at the time said Frame delivered to plaintiffs the property and money mentioned in his set-off, there were mutual accounts between plaintiffs and defendant, they will find for defendant the amount of the money, and the value of the property he delivered plaintiffs, as charged in his off-set, and they will exclude from their consideration the account filed with the plaintiff's replication, and all evidence relating thereto, unless the jury further find from the evidence that said property and money were delivered by defendant to plaintiffs as a payment on said account.”

The rule of law is properly stated in the plaintiffs’ instructions. If the party paying fails to designate or direct the payment to be placed to bis credit on a certain or particular demand, and there be several demands against him in favor of the creditor, then, in the absence of any direction how and where to give credit, the creditor may place it as a payment on any of his demands at his own option. There is nothing, then, in the objection by plaintiff in error against these two instructions of the plaintiffs below.

If the instructions given for the defendant below contain any principle seemingly in contradiction to the instructions of the plaintiffs, and, consequently, become thereby erroneous, the error, if there be any, is in favor of the defendant, and cannot be set up here by him against the judgment below.

These instructions, to say the least, were as favorable as tha' facts and the law would authorize for the cause of the defendant ; and if the jury still found against him, it is owing to their estimate of his conduct, when the account was shown to him», with the credits and his acquiescence or silence on the subject.

Upon the whole case, it is the opinion of this court that the-judgment below should be affirmed. Let the judgment be affirmed, the other judges concurring.


text:
    Hall, Appellant, vs. Clark, Respondent.
    1. A purchaser of land who has sustained injury by the deceit of the vendor’ pending the negotiation, may either set up his damages by way of recoupment in an action for the price, or may afterwards sue for them in an.inr-dependent action, at his option.
    2. But if he fails to recoup, he will not afterwards be entitled to an injunction of a judgment for the price, pending a suit for the damages, on a mere’ allegation of the vendor’s insolvency.

      Appeal from Greene Circuit Court.

    This suit was brought by Hall to recover damages for a deceit alleged to have been practiced upon him by the defendant; in a sale of land.

      The petition stated that the plaintiff purchased eighty acres of land of the defendant, for which he paid $400 in cash, and gaye his note for $200 ; that the defendant, in order to induce him to purchase, “ falsely and fraudulently” represented to him that there was a never-failing spring upon the land ; that the spring itself had since been ascertained not to be upon the land sold to plaintiff, but only a branch from it j and that the spring was not a never-failing spring, but failed during a great portion of the year, by which his land was rendered less valuable than it otherwise wonld have been by $250 ; and that the defendant had recovered a judgment against him on the note and was insolvent; wherefore he prayed that he might be enjoined from collecting his judgment, until the determination of this suit. The defendant demurred to this petition, assigning as cause, that the facts stated were matter of defence in the former action. The demurrer was sustained, and the plaintiff appealed.

      F. P. Wright, for appellant.

      Clark, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The causes of demurrer set forth by the respondent, were not sufficient to defeat the plaintiff’s action. In cases in which a defendant is sued for the purchase money of property and he has sustained injury by the fraudulent misrepresentations or misconduct of the plaintiff respecting the subject of the sale, pending its negotiation, he may, at his option, recoup his damages in an action against him to recover the purchase money., or he may bring a separate action for the deceit. Such a defence is of the nature of a set-off, which a party may use or not, at his election ; and a failure to use it as a set-off will not debar him from his action for the fraud. This is the general rule, and there is nothing shown in the pleadings to take this case from the sphere of its operation.

Here, the plaintiff had his option, either to set up the matter alleged to be fraudulent in order to defeat or diminish the amount claimed by the defendant in the action in which he wag plaintiff, or to make it the subject of a separate suit.

But, inasmuch as the plaintiff failed to use his cause of action by way of recoupment, he has now no right to an injunction to restrain the collection of the defendant’s judgment. It does not appear but that the plaintiff was apprised of the defendant’s alleged insolvency pending the first suit between these parties. Then, as he had a defence, and might have made it, and the motive urged him to it which now induces him to seek an injunction, and he failed to do it, he cannot now profit by his own negligence and obtain an injunction to prevent the collection of the defendant’s demand.

The other judges concur, and the judgment will be reversed and the cause remanded, in order that the plaintiff may proceed with his action; but the defendant will not be restrained by the injunction granted in the cause.


text:
    Wilson, Respondent, vs. Petty, Appellant.
    I. A party sued before a justice for the value of rails converted to his own use, may, at the trial in the Circuit Court on appeal, show title to the land upon which they were cut.

      Appeal from Montgomery Circuit Court.
    This was an action begun before a justice for the value of rails alleged to have been wrongfully taken by the defendant.
    At the trial in the Circuit Court on appeal, the plaintiff offered evidence tending to show that he bought the rails of a party who made them on public land, and that afterwards, the defendant, under a claim of having entered the land, forbade him to remove them. The defendant offered to read in evidence his certificates of entry, but they were excluded, and he excepted. The record does not show whether the entries bore date before or after the rails were cut. The court gave the following instruction, under which there was a verdict for the plaintiff: “ The plaintiff is entitled to recover from the defendant damages for any rails taken from the actual possession of plaintiff by him, or from any land in the actual possession of the plaintiff at the time, and for no others.”

      Jones, for appellant.
    1. One trespasser on public land, not an actual settler, cannot maintain an action against another. (6 Mo. Rep. 583.) 2. The court below erred in excluding defendant’s evidence of title.

      G. Porter, for respondent.
    1. As the cause originated before a justice, and the same cause of action had to be tried in the Circuit Court on appeal, the title could not come in question. (R. C. 1845, tit. Justices’ Courts, art. 1, § 4, art. 3, § 18, and art. 8, § 18.) 2. If the rails were cut on public land, defendant acquired no title to them by the entry. ( James & Massey v. Snelson, 3 Mo. Rep. Keeton v. Jhtds-ley, 19 Mo. Rep.)
   Scott, Judge,

delivered the opinion of the court.

We cannot see from the record on what ground the decision of this case was made to turn in the court below. It is usual, when a point of law is involved, if none of the instructions asked by the parties express it correctly, for the court to declare the law of the case. This was not done here, and we are at a loss to ascertain on what point the case turned in the Circuit Court. There is no evidence preserved in the record which warrants the instruction that was given for the plaintiff, the respondent here, on which, we suppose, he obtained a verdict. We do not see the ground on which the certificates of entry offered by the appellant in evidence were rejected. Surely, it could not have been on the ground that the 4th section of the 1st article of the act establishing justices’ courts, denies jurisdiction of any actions where the title to any lands or tenements shall come in question. The 18th section of the 3d aft. of the same act, shows in what cases that provision was intended to be applied, and this is clearly not one of them ; and if it were, the court bas not proceeded in conformity to tbe requirements of the statute.

Without saying any thing in derogation of the rule laid down in the case of Turley v. Tucker, (6 Mo. Rep. 583,) we may express this opinion, that the case of Keeton v. Audsley, (19 Mo. Rep.) does not overturn it.

Judge Ryland concurring, the judgment will be reversed, and the cause remanded ; Judge Leonard not sitting.


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    Williams et al., Plaintiffs in Error, vs. Smith, Defendant in Error.
    1. A protest of a non-negotiable note, being unauthorized, cannot be used as evidence.
    2. An erased endorsement on the back of a note is no evidence of a transfer.

      Error to Jackson Próbate and Com,7non Pleas Court.

    Action by the payees against the maker of a note executed in Philadelphia, not negotiable under our statute. The de-fence was, that the plaintiffs had “ assigned the note by endorsement to Robert Aull, and that the same had not been reassigned to plaintiffs.” At the trial, the defendant offered to read, as evidence of the assignment, the protest annexed to the note, showing that it was protested “ at the request of Robert Aull, the holder,” and also an erased endorsement on the back of the note from plaintiffs to Aull; but this evidence was excluded, and after judgment against him, the defendant sued out a writ of error.

      Reid, for plaintiff in error,
    cited 15 Mo. Rep. 68. 8 Mo, Rep. 570. 14 Mo. Rep. 428. Litt. Select Cases, 208.
    No brief or appearance for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It may be seen from the words of the note sued on, that it was not a negotiable one, .within the meaning of the 15th section of the act concerning bills of exchange and negotiable promissory notes.

The note, not being negotiable within the meaning of the statute, there was no authority to protest it; consequently, any protest made of it could not be received as legal evidence. The blank endorsement of the names of the payees is not evidence of a transfer of the note, as it was erased, and as there was no proof that the note ever had been endorsed to any one. The payees may have contemplated a transfer, and afterwards have changed their minds. In the case of Davis v. Christy, there was evidence that the note had actually been transferred, and it was held that the destruction of the evidence of the transfer would not divest the title of the assignee. Here, it does not appear that the note ever had been assigned.

The other judges concurring, the judgment will be affirmed.


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    The State, ex rel. Donohoe vs., Richardson, Respondent.

      1. The purchaser at a tax sale of several tracts, separately sold and bid off, is entitled to a deed from the register reciting the fact that thay were so sold and purchased.
    2. But it is not necessary that the deed should recite that the register, upon due examination, is satisfied that all the requisites of the law have been complied with, as the execution of the deed furnishes as good eyidence that he is so satisfied as would a recital.

      W. Adams, for the relator.

      Gardenhire, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This is a petition for a mandamus on the register of lands, compelling him to issue a deed to Stephen Donohoe, for lands sold for taxes, on which, it is represented, that the said Dono-hoe, at a sale of lands for the taxes for the year 1851, made by the collector of Linn connty, on the first Monday in October, in the year of our Lord 1852, became the purchaser of five several tracts or parcels of land, which were separately sold for the sum of one dollar for each tract, which said sums were paid by the said Donohoe ; that more than two years have elapsed since said sale, and that all the prerequisites necessary to entitle him to a deed under the law have been complied with.

It is further represented that, in January, 1855, Donohoe applied to the register for a deed for the said lands, who delivered him one. This deed was refused by Donohoe on two grounds ; first, because the deed made it appear that the lands were sold and purchased in a lump or in one body, and at one bid, against the truth of the case ; secondly, that the deed fails to recite the fact that the register of lands was satisfied, upon due examination, that all the requisitions of the law had been complied with. These facts are not controverted by the register, and the case is submitted to the court upon the petition and return.

It is clear, from the facts as agreed, that the first objection to the deed is a valid one. The deed does not state the truth of the case, and a purchaser is entitled to a conveyance which recites the various acts of sale in the manner they actually took place. The law never contemplated that delinquent lands should be sold in the lump. A deed showing that lands were sold in this manner, could not be contradicted, and a purchaser would not be at liberty to prove that they were sold in the manner required by law- The several parcels may belong to different individuals, and there being but a single sale, the purchaser would have a right to insist that the owner of one tract, applying for redemption, should redeem all the lands sold at one time, although but a single tract belonged to him. As the law requires that each tract should be sold for its own taxes and penalties, a purchaser is entitled to a deed which shows that the sale was conducted in the manner prescribed by the statute, when that is in conformity to the truth of the case. If the law should be violated, in this particular, in making a sale, and many delinquent tracts should be put up at one time and sold at one bid, in a lump, the sale could not be upheld, and the register would be warranted in withholding a deed.

In regard to the second objection to the deed, that it omits to recite that the register was satisfied, upon due examination, that all the requisitions of the law had been complied with, before the execution of the deed, it may be observed, that the act of 13th February, 1847, which is the last one on this subject, andón which this objection is based, (sec. 30,) does not require that the deed should contain such a recital. The register is required to be satisfied that the law has been complied with, before he executes a deed. But is not the making a deed a sufficient declaration that such is the case ? If the law has not been complied with, and the register makes a deed, is he not guilty of as great a breach of duty, though he may fail to make the recital, as if he had actually made it ? and would not the same penalties attach to his conduct ? So that the recital contributes nothing to the security of the purchaser, or to that of the owner of the delinquent lands. If he makes the deed, and fails to insert the recital, when he knows that the law has not been complied with, there is as great a violation of duty as if he had made the recital; for the delivery of the deed is a solemn declaration on his part of the opinion that the requirements of the law have been conformed to.

If a deed was now, for the first time, to be framed under the act of 1847, the recital might be inserted as harmless, and out of abundant caution. But when we reflect that the form of the deed, adopted under the law, now long in use, omits the recital — that the omission has not and can not, in the least, affect the rights of any one interested in the sales of lands for taxes— that its insertion would not contribute any thing to the protection of delinquent land owners, — to hold now that the recital is necessary, when it is not required by law, would look like sporting with the rights of individuals.

Peremptory mandamus awarded, requiring a deed, in conformity to this opinion;

Judge Ryland concurring ; Judge Leonard not sitting.


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    Owens, Respondent, vs. Tinsley & Tinsley, Appellants.
    1. The supreme court will not review the discretion exercised hy the inferior court in overruling an application for a continuance upon an affidavit that the party could not he present at the trial by reason of sickness.
    2. "Where the transcript in the court to which a cause has been taken by change of venue contains a statement that the answer “ is not to be found/ a rule upon the clerk to send a perfect transcript, with the omission supplied, may be properly refused.
    3. Where an original answer is lost, and an entry is made upon the record that “by consent of parties,” the defendant may file an answer within a specified time, judgment may be rendered by default if no answer is filed within the time limited.

      Appeal from Platte Circuit Court.

    The case is stated in the opinion of the court.
    Vories, for appellant.
    1. The judgment should be reversed for the improper exercise of discretion by the Circuit Court. The defendant’s answer had been lost without his fault, and he was prevented by sickness from being present to file a new one ; and the court refused either to continue the case, or grant a rule for a perfect transcript. (1 Mo. 529. 6 Mo. 544. 9 Mo. 18.) 2. No judgment by default could he rendered against the defendant. He was not in default. (1 Tidd’s Practice, 609.)

      Abell & Stringfellow, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

William A. Owens commenced his suit by petition against James Tinsley and James H. Tinsley, in the Clay Circuit Court, at the February term, 1852, upon a promissory note, for three hundred and ten dollars.

The record shows that, on the 19th day o£ August, 1852, the defendants filed their answer to the plaintiffs’ petition. The record also states that the “ answer is not found among the papers.” On the 10th November, 1852, the record shows that the plaintiff filed his replication to the defendants’ answer. The cause was then continued.

In April, 1853, on the petition of the defendants, the venue in this cause was changed to the Platte Circuit Court, in another and different judicial circuit, on account of the prejudice, as alleged, of the judge of the Clay Circuit Court. After-wards, at the September term, 1853, of the Platte Circuit Court, the plaintiff, Owens, suggested a diminution of the record ; thereupon, it was ordered, that the clerk of the Clay Circuit Court send up to the Platte Circuit Court the original note sued on in this case.-

Afterwards, on the 12th day of September, 1853, the defendants file their objections to the depositions taken in the case, and file their motion to suppress the depositions. This order also appears on the record: “Defendants also have leave, by agreement of parties, to file their answer at any time during the present week of this term.” On the 17th September, the motion to suppress depositions was taken up and overruled. On the 22d of September, 1853, judgment was rendered by the Platte Circuit Court against the defendants, for the want of an answer. On the 24th of September, the defendants filed the motion for a new trial, assigning as reasons, in support thereof : 1st, Because the court refused to continue the cause on the application of the defendants : 2d, Because the court refused to grant defendants a rule on the clerk of the Olay Circuit Court to send up a perfect transcript of the record in this cause ; 3d, The court erred in giving judgment against the defendants as for want of an answer, when the record shows that an answer had been filed and a replication thereto, and issues taken thereon ; 4th, The court had no right to try this cause, and make the finding under the circumstances.

The record shows that an execution issued on this judgment, against the defendants ; that the defendants, on the second day of February, 1854, filed their petition for an injunction; that an injunction was granted ; that on the 7th of March, 1854, the defendant, in the petition for the injunction, filed his answer, and afterwards his motion to dissolve the injunction. On the 21st March, 1854, the motion heretofore made at the last term for a new trial, was taken up, argued, and by the court overruled. The court dissolved the injunction, and, by agreement of the parties, assessed the damages without a jury; the damages were assessed at five per cent., making the sum of $18 66. The defendants, in the original action, prayed an appeal to the Supreme Court, which was granted. They have brought the cause here, and now complain that the Circuit Court improperly refused to continue the same, when it was called for trial.

In looking into the bill of exceptions, I find that the affidavit of Felix Braden is relied on as the ground for the continuance. This states that one of the defendants is an old and an infirm man, the father of the other defendant; that the old man has mostly relinquished all care and attention to business, and that the other defendant, the son, manages and attends chiefly to all the business for his father and himself ; that a few days before the application for the continuance was made, the son was accidentally shot through his thigh and was confined to his bed, unable to come to court; and that he sent the said Braden to bear-the news to his lawyers. This affidavit does not set forth a sufficient cause for a continuance; for aught that appears, all the witnesses, and all the testimony that the defendants had, might then have been present at the court. The bare old age and infirmity of body of one defendant, and the accidental wounding of the other, though he was the chief business man of the two, is not such a cause for continuing the case as to render the refusal to continue error. The Circuit Court had a discretionary power in this matter, and we cannot see that the same has been unsoundly exercised. There was nothing to be gained to the defendants by making a rule on the clerk of the Clay Circuit Court to certify up a perfect and complete transcript. That clerk bad stated that the answer of the defendants was not to be found. To grant this rule, then, at that time, would have only been indirectly granting a continuance, without the probability of getting a more perfect transcript. The Circuit Court, therefore, might very properly refuse to make this rule. The only remaining ground of complaint then, is, the giving of the judgment against the defendants for want of an answer.

This, indeed, presents the only matter worthy of reflection or consideration in the case. Here the defendants had, on a plain promissory note for the payment of money, obtained a change of venue from one judicial circuit to another, by alledg-ing the prejudice, as they supposed, of the judge of the circuit in which the suit was commenced. In certifying the transcript, as the law directs, the clerk cannot send a copy of the defendant’s answer, because the answer is not to be found among the papers in his office. He sends the transcript and states the loss of the answer, or rather that it cannot be found. This record, thus sent, remains in this condition for some six months, when an order is made, by the agreement of the parties, that “the defendants have leave to file their answer at anytime during the present week of this term of the court.” This order was made on the 12th of September, 1853, which w'as Monday. On the 22d of the same month, ten days after this order had been made, no answer is filed, and a rule prayed for on the clerk of the Clay Circuit Court to send up a perfect transcript of the record in his office, including the answer, although, by agreement of the parties, leave had, ten days before, been given defendants to file an answer any time during a week. It behooved the defendants, on whose application the change of venue had been obtained, to see that the transcript had been properly made out and filed. All that could be done by the plaintiff had been: he agreed that the defendants should file their answer in the Platte Circuit Court; that they should have the week to file it in. He waited until the tenth day after this agreement before the case was called for trial. The defendants, having failed to file their answer as a substitute, the court below acted properly in giving judgment against them, when the case was called, as for want of an answer. It was all that could be done. There was an agreement to file the answer, and the failure to comply with this agreement, is justly punished by giving judgment against them by default for want of such answer. The agreement by the parties for the defendants to file an answer, must be considered tantamount to an admission that no answer had been theretofore filed, at least that no available answer had been filed, and when the failure to file an an-answer, according to the agreement, happened, there was no other alternative left but to render judgment by default for want of such answer. Upon this ground, also, we find no error in the court below.

The defendants have likewise had the benefit of their injunction. They have filed their bills setting forth their grounds, on which they rely for relief against this judgment. The plaintiff, in the original suit, answered this bill under oath; the court dissolved the injunction. Upon the whole case, we are satisfied that no injustice has been done to the defendants ; no errors committed to their prejudice, and that the judgment below should be affirmed, which is done accordingly ; the other judges concurring.


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    Talbot’s Executor, Respondent, vs. Mearns, Appellant.
    1. The sale bill made out and sworn to by the clerk at an administration sale, though prima fade, is not conclusive evidence, in a controversy between two parties claiming to have purchased the same property at the sale.

      Appeal from Montgomery Circuit. Court.

    The case is stated in the opinion of the court.

      Cornick & Jones, for appellant.

      G. Porter, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

David J. Talbot sued James Mearns, before a justice of the peace, on an account for one steer at $9. The plaintiff obtained judgment before the justice for $6. The defendant appealed to the Circuit Court. During the pending of the suit in that court, the plaintiff died, and Thomas Talbot, his executor, was substituted in his stead. The plaintiff obtained judgment also in the Circuit Court, for the sum of $4 45 and costs. The defendant moved for anew trial, which being overruled, he excepted, filed his bill of exceptions, and brings the case here by appeal.

The only point for the consideration of this court is in regard to an instruction which the record states was considered as asked by the defendant, and refused by the Circuit Court.

It seems that the plaintiff’s testator, David J. Talbot, and the defendant, James Mearns, had purchased some cattle at the sale of the estate of Joseph Oliver, deceased, by his administrator, in August, 1851; that Mearns contends he purchased seven head of cattle, including the steer sued for in this action. Talbot contends that Mearns carried off and has in his possession one of the steers that he had purchased at the sale. So the action depends upon the ownership acquired at that administrator’s sale.

The plaintiff produced as a witness, James Nunnelly, who said he was the clerk of the sale, of the personal property of Joseph Oliver’s estate, made in August, 1851. Here a paper was shown to the witness, who said it was in his handwriting, and was the sale bill of that sale ; that it was correct, and that the cattle were sold as therein stated ; that David T. Talbot and the defendant, Mearns, bought just such cattle as were set down in that sale bill. On cross-examination, this witness said the paper shown him was not the original paper ; that his was a correct copy; that he had drawn it off the day after the sale, the original being somewhat blotted; that Mr. Best, the administrator of the estate of Joseph Oliver, assisted him in Copying. Mr. Best read from tbe original, while he (witness) copied ; that he believed the copy was correct. They had taken much pains, though they were liable to mistakes, 'as other men are ; but he believes there were none. In the paper first shown them, among a -long list of articles sold, purchasers’ names, and of prices, I find the fallowing:

“ 1 white and 1 black steer, James Mearns, - $T 50
“ 2 spotted heifers, " - - 6 00
“1 red heifer, " - - 4 25
“ 1 red heifer, James Mearns, ----- Q 25.”

The witness was then shown another paper by the defendant’s counsel. Witness said, this is his handwriting, and is the original sale bill: he saw nothing on it to prove to him that it had been' or had not been altered. He stated he was present when all the cattle were sold, and put them down on the sale bill as they were sold. Talbot and Mearns bought the cattle just as set down on the sale bill: he does not think Mearns bought seven head; but that he bought six, as stated in the sale bill. Defendant’s counsel called witness’ attention to the two sale bills. The copy stated that Mearns bought one heifer at $6 25 ; the original, that he bought two heifers -at $6 25. After examining them, witness said >ke believed the original was correct, for that he and the' administrator had determined to sell them in pairs, and they were so sold, when it could be done; for this reason, and because the one on one bill and the two on the other were at the same price, he believed there was a mistake in copying. On the last paper shown to the witness, which witness said was the original sale bill, I find the following items :

1 white and black steer, James Mearns, note, - $7 50
2 pided heifers, “ “ - 6 00
1 red heifer, ' ‘ “ - 4 25
2 red heifers, James Mearns, note, - - - - 6 25

In the first sale bill offered, this last item is but one red heifer; in the last, it is two red heifers ; but I find the first item, in the first sale bill, is “ 1 white and 1 black steer in the last, it is “1 white and black steer.” I have been thus particular in noticing the evidence in regard to these sale bills. There was other evidence conducing to show that Mearns purchased seven head of cattle; also, evidence conducing to show that he (Mearns) had taken the red steer of Talbot from the place of sale, when he came to drive bis cattle home, after they had returned.

After the evidence had been closed, the defendant asked for the following instruction : “ The description of the farm stock in the said bill of an administrator’s sale, made out by the clerk of such sale, and sworn to, is not evidence in a suit between two buyers of cattle at that sale, of the color or sex of such cattle.”

This the court refused to give. The bill of exceptions here states that the jury were then directed to retire with the sheriff, and, while in the act of leaving the bar, and before they were out of the court room, the defendant’s counsel said to the court that he had intended, if the above instruction was refused, to ask the court to instruct “ that the sale bills were not conclusive evidence-.” The judge replied, “ that he should have refused that also.” The defendant’s counsel then said, “Will the court consider it as asked in the same terms as the other, except that they were not conclusive evidence,’ and refused?” To which the court assented. To the refusal of which instructions the defendant’s counsel excepted.

There is no error in refusing to give the first instruction, or the instruction as it was asked at first; and, had the record showed.nothing else, its judgment would have been affirmed at once. The instruction, as amended, should have been given; for, though such sale bills, when returned, may be evidence, yet they are not conclusive evidence ; they are only prima fa-cie evidence for or against an administrator even, and surely, not more or stronger against third persons.

Other evidence may be introduced to vary the effect of such sale bills, inventories and appraisements. These sale bills cannot be conclusive as to third persons, either as to the color, sex or price even of stock sold. Evidence may be introduced to change the effect of such sale bills, in such matters. But the trouble before this court was, to see how the refusal to give the amended instruction could operate against the defendant. Were the jury present, or had they left the room ? Were they in the hearing of this conversation between the court and the defendant’s counsel ?

We must, from the record, come to the conclusion that the jury had not retired ; they were leaving or in the act of retiring from the bar ; but we must infer, had not retired. They then heard this instruction asked and refused, and were in a condition to be misled by this act of the court. We must, therefore, reverse the judgment. We suggest to the courts the’ necessity, when instructions are asked, to see that the law is. properly laid down to the jury, and not to content themselves by simply giving or refusing the instructions as asked. The-object of the courts should be not to get clear of laying down the law, by refusing to instruct, especially when instructions, are prayed for which, in part, contain the law, and which, obviously show a desire to have the jury properly instructed ; although in the hurry or for other reasons the counsels have not-properly attended to the framing and phraseology of the instructions. Let the lower courts place the law fairly before the-jury, in a few, plain, forcible, pointed and pithy instructions, and there will be much less appealing — much less dissatisfaction with their decisions. They should declare the law whenever called upon, in order to assist the juries in coming to a proper-determination. The conduct of the judge, in this case, was, to. say the least, unusual. He ought to have instructed the jury-in regard to the evidence arising on the sale bills: he was asked to do so, and he should not have neglected it. Though an improper instruction had been asked and refused, the jury were still in the dark as to the effect, legally, of these sale bills. His province was to aid them by instructions. And again, why state in the bill of exceptions the fact of the jury being about to retire, so as to render uncertain before this court whether they heard the instructions asked for or not; the Circuit Court must have known whether the jury was before the court or not — in hearing, or not.

Upon the whole case, this court concludes it most compatible with the rights of the parties that there should be a new trial. The judgment of the Circuit Court is therefore reversed, and the case remanded;

Judge Scott concurring, he being the only other judge on the bench when this cause was submitted»


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    Gunn, Plaintiff in Error, vs. Head, Defendant in Error.
    1. Usury upon a contract in another state must he specially pleaded. The act of 1847, allowing the defence of usury under the general issue, even if not repealed hy the practice act of 1849, is only applicable to contracts made in this state.
    2. Although parties cannot prospectively agree that interest may hear interest, yet, after interest has accrued, it may be agreed that it shall bear interest.

      Error to Benton Circuit Court.

    There is a sufficient statement in the opinion of the court to show the point upon which the case was reversed.

      F. P. Wright, for plaintiff in error.

      Gardenhire, for defendant in errror.
   Scott, Judge,

delivered the opinion of the court.

This was an action on an account stated in California, for money due on contracts between the parties, entered into in that state.

The answer, in effect, was, that there was no legal accounting between the parties, and that the plaintiff had been overpaid. There was a judgment for the defendant, Head, the court finding that the transaction was vitiated with usury, and that the sum claimed was usurious interest.

We do not see how the finding of the court can be sustained. It far transcended tbe matters in issue. When tbe aceount stated was preved as alleged in the plaintiff’s petition, we find no authority in the pleadings for inquiring into the matter of usury ; for we presume that the mere denial that there was any legal accounting between the parties, will not be insisted as sufficient to raise any such issue. The practice act of 1849 requires that all defences shall be specially pleaded. It is not necessary to inquire whether the provision in the act of 1847, respecting the defence of usury, which allows such defence to be made under the general issue, or under the plea of non est factum,, when the suit is on a specialty, was repealed by the practice act of 1849, as the provision in the act of 1847 is only applicable to contracts made in this state. The contract or contracts out of which this controversy arose, were all made in California, and the law of. that state respecting interest is preserved in the record.

The court was evidently mistaken in the notion that interest cannot bear interest. Parties cannot prospectively agree that interest may bear interest; but after interest has accrued and is due, it may be agreed that such interest may bear interest. ( Van Banchotten v. Lawson, 6 J. C. R. 313. State of Connecticut v. Jackson, 1 J. C. R. 13. Barron v. Rhineleader, 1 J. C. R. 550.)

The conclusion to which the court came, that the transaction was usurious, was scarcely warranted by the evidence. There is nothing in the law regulating the rate of interest in the state of California, that precludes the idea that the dealings between the parties, as they appear in the record, were freed from the taint of usury. The action was founded on an account stated. That was a sufficient consideration. The interest agreed upon between the parties may have been by a separate written agreement, executed simultaneously with the principal contract. The presumption is that a contract, lawful in its terms, nothing more appearing, is a valid one, and he who impeaches it must show its illegality. By the law of California, it seems i't was permitted by statute law for parties to contract for any rate of interest, however enormous, if done by writing. Is it not strange, such being the law, that the stipulation respecting the rate of interest should have been omitted ? Was it the effect of accident, mistake or fraud ? If so, and the party after-wards acknowledges the omission and corrects it, by an agreement to pay the interest lost against the understanding of the parties, would this contract be usurious or illegal? All these difficulties flow from the attempt of the court to set up a de-fence for the party, which he himself has failed to do. Let the defendant, by his apswer, show how the law of California has been violated by the transaction out of which this suit had its rise, and then it will be time to allow him the benefit of such violation.

The other judges concurring, the judgment will be reversed, the cause remanded, and the defendant will have leave, if he desires it, to amend his awswer.


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    The State, to use of Moore & Moore, Respondent, vs. Price & Lusk, Appellants.
    1. An allegation that the plaintiffs are administrators de bonis non is sustained by the production in evidence of letters purporting to be general letters of administration, it appearing that there was in fact a prior administration.
    2. The order of the county court is a sufficient appointment of an administrator, without any formal letters, if the party give the bond and take the oath required by law.

      Appeal from Cole Circuit Court.

    This was an action brought by Moore & Moore, alleging that they were administrators de bonis non of Jesse Renfro, deceased, against Price & Lusk, as securities in the bond of William Martin, the prior administrator. At the trial, the plaintiffs offered in evidence letters of administration, which, on their face, purported to be general. The plaintiffs read in evidence, from tbe record of tbe county court, tbe order appointing them administrators de bonis non. To the admission of this evidence, tbe defendants excepted, and after ,a judgment against them, appealed to this court.

      Gardenhire, for appellants.

      Parsons and Edwards, for respondents.
   Leonard, Judge,

delivered the opinion of the court.

The only point relied upon in argument for tbe reversal of "this judgment, is tbe alleged variance between tbe allegation and the proof, in reference to tbe representative character of Moore & Moore, for whose use tbe suit is brought. Tbe allegation is, that they are tbe administrators de bonis non of Jesse Renfro, deceased, and their letters, given in evidence, are general, constituting them administrators of the deceased, without any limitation as to tbe effects to be administered. Martin was tbe original administrator, and, of course, tbe subsequent grant of a general administration could only have effect as an authority to administer tbe unadministered effects ; in other words, at tbe very utmost, it could only be in point of •legal effect an administration de bonis non, no matter how .general tbe words might be. Tbe county court, when they made the grant, could confer no other authority, and must bold the letters utterly void, or give them tbe limited effect indicated. Eor tbe purpose of upholding tbe proceedings of tbe county court, we may look to tbe facts existing at tbe time, and'give effect to their letters, to tbo extent of their authority., and stop there. It may be likened to tbe common case of one having power to act, and exceeding bis authority, and yet tbe •act done is valid to tbe extent of tbe power.

Again, tbe order of tbe county court is a sufficient appointment, without any formal letters, if tbe party give the bond and take tbe oath required by law, (Lane’s adm'r v. Clark's adm’r, 1 Mo. Rep. 657; Carroll’s adm’r v. Corn, 1 Mo. Rep. 131; and the remarks of Tompkins, Judge, in reference to this case, in Carpenter v. The State, 8 Mo. Rep. 295.) Here-, the order read in evidence appointed these plaintiffs administrators'ole bonis* non, and the clerk committed the error in drawing np the formal letters'. The judgment is affirmed ;

Judge Scott not sitting...


text:
    Terrell, Respondent, vs. Hunter, Appellant.
    1. It has been repeatedly held that the-practice act of 1849, (except in the 25th article,) does not govern the trial in the circuit court of cases appealed from justices of the peace.
    2. A. at the request of B. and as Eis security, signed a note as joint malier with him, payable- to C:, with the understanding that B-. would’ get two others also to sign as securities, or destroy the note. B. took the notej and after getting, one other signature only, delivered the same for value to C., who was without notice of the condition upon which A. signed. In an actiowon the note by C". against A., held that A. was liable.

      Appeal from Andrew Circuit Court.

    Action on a non-negotiable note, made by Lingenfelter; Hunter & Brumfield, payable to the plaintiff, Terrell. The suit was begun before a justice of the peace in 1851, and appealed by the defendant, Hunter; to the Circuit Conrt, where it was tried by the court without a jury. The evidence offered at the trial is not preserved in the record;, but the bill of exceptions states, that the facts were found by the court to be, that Lingenfelter signed the note as principal, for the purpose of borrowing' money from the plaintiff, and applied to Hunter to sign it as security, who agreed to do so, provided he would get Brumfield and Dr. Baker also to sign it; that Hunter signed the note with the express understanding that it was not to bs delivered, but destroyed, unless Brumfield & Baker also went upon it; that Lingenfelter took the note, and, after procuring Brumfield to. go upon it,, borrowed the money on it from ths-plaintiff, who had no notice o£ the circumstances under which Hunter’s signature was obtained.
    Upon these facts, the Circuit Court held that Hunter was liable, and gave judgment accordingly. To this opinion, Hunter excepted, and appealed to this court. No instructions were asked, and none given. The bill of exceptions contains a statement that the parties agreed that the facts were correctly found, and that the only question was as to' the conclusion of law. The cause was submitted at the January term, 1858, Judge Leonard not then being upon the bench ; but no opinion was filed until the present term.

      Leonard, for appellant.
    Delivery of a promissory note is essential to its validity. Here there was no delivery on the part of Hunter. The note was signed and put into the hands of one of the makers, to be delivered when signed by two others, or destroyed in the event of their declining to sign it. The principal had no authority from Hunter to deliver the note, and the delivery by him, without authority, is not binding on Hunter. (Canfield v. Ives, 18 Pick. 263. 20 Johns. Rep. 288. Clark v. Gifford, 10 Wend. 280. Jackson v. Sheldon, 22 Maine Rep. 574.)
    No brief or appearance for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a cause originally commenced in a justice’s court, whence, after a judgment for the plaintiff, it was taken by appeal to the Circuit Court, where, on a trial de novo, there was a judgment for the plaintiff a second time.

This cause, being an appeal from a justice’s court, was tried by the court sitting as a jury, and no instructions were asked by either party. It has been repeatedly held, that causes taken by appeal from a justice’s court to the Circuit Court, must be tried as they were tried by the old law, and not under the present practice act. The proceedings in justices’ courts are expressly excepted from the operation of that act but in one particular, which does not affect this question. On an appeal from a justice’s court to the Circuit Court, if the cause is submitted to the court for trial, instructions must be asked declaring the law, otherwise the case cannot be reviewed. The facts should not he found by the court, but the evidence must be preserved by a bill of exceptions, as under the old practice. The same course is pursued if the trial is by a jury.

We feel no reluctance in making this disposition of the cause, as, on the merits, the judgment is clearly for the right party.

Judge Ryland concurring, the judgment will be affirmed.


text:
    McCauley’s Administrator, Defendant in Error, vs. Cleveland, Plaintiff in Error.
    1. The receipt of a share of the profits of a concern does not necessarily create a partnership in the stock, as between the parties.

      Error to McDonald Circuit Court.

    The case is stated in the opinion of the court.

      Edwards, for plaintiff in error.
    No brief or appearance for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

James McCauley, in his lifetime, commenced his civil action in the Circuit Court of McDonald county, against Jasper Cleveland. McCauley, in his 'petition, stated that on the 1st day of February, 1850, he bought of Cleveland, the defendant, one half of a blacksmith shop and a set of tools, and entered into partnership with the defendant in the blacksmith business. He states that they were both to share equally in the profits of said business : he states that they worked together in said shop for some three months or more, in which time divers accounts were made against divers persons for various amounts. He states the names of several persons, and the amount of the accounts due by them. He charges that defendant had collected these accounts, or a greater part of them, and has failed to account to the plaintiff for the same. He also charges that defendant sold the said blacksmith’s shop and tools for some four hundred dollars, for which he (defendant) has failed to account with plaintiff. He states that he is still indebted to the defendant a small amount on the original purchase of the shop and tools. He asks for judgment for the amount found to be due him, after deducting such credits as the defendant may be entitled to, which plaintiff states he believes to be about forty-four dollars, leaving a balance of two hundred and twelve dollars, for which he asks judgment.

The defendant answered this petition by stating that the plaintiff, after he, the defendant, had purchased a blacksmith shop and blacksmith tools, desired to enter into partnership with the defendant, and it was agreed by defendant that if he, the plaintiff, would pay one half of the cost of said shop and tools, he and plaintiff should be joint owner's thereof, and carry on the business in co-partnership with defendant.

Defendant says plaintiff afterwards came into the shop and worked with him about a month or six weeks, and left, and did not return. Defendant also states that plaintiff, during the time he worked with defendant, as aforesaid, received his full share of all the proceeds and profits of said concern, but never did pay the one half of the cost of said shop and tools, nor any part thereof, and had no interest therein. Defendant did sell said shop and tools and kept the proceeds, as he had a right to do. Defendant denies that he owes plaintiff any thing, but charges that he (plaintiff) owes defendant for the use of said shop and tools while he worked in said shop, the sum of twenty-five dollars, for which he asks judgment.

The plaintiff moved the court to strike out this answer. The record does not show what became of this motion. There was a trial by jury, and a verdict for the plaintiff. Defendant moved to set aside this verdict: his motion being overruled, he excepted and filed bis bill of exceptions. The death of the plaintiff, McCauley, is afterwards suggested on the record, and Moses Allen, as administrator of the said McCauley, is admitted, by consent of the defendant, to prosecute the action as party plaintiff.

The bill of exceptions shows that, on the trial, the plaintiff proved that defendant sold the shop and tools mentioned in the plaintiff’s petition, for four hundred dollars, and collected, thirty dollars of the partnership debts; that McCauley purchased of Cleveland, for ninety dollars, one half of the shop and tools, and that McCauley paid Cleveland' fifty dollars thereof, and Cleveland told witness that he did not know whether there were debts due the firm to pay the residue of ninety dollars. This was all the evidence given by the plaintiff. The record is silent as to what evidence was given by defendant; none appears to be saved by the bill of exceptions.

The court, at the instance of the plaintiff, gave the following instruction to the jury: ‘' It is admitted by defendant that plaintiff was in partnership with him in the blacksmith shop and tools, and that defendant sold the shop and tools and kept the money; and if the jury believe from the evidence, that plaintiff paid defendant any amount on the shop and tools, plaintiff is entitled to recover the amount so paid, and the amount of partnership dues collected by defendant, after deducting the amount yet due defendant on the shop and tools; and that plaintiff is entitled to recover from the defendant half the amount for which the shop and tools were sold for by defendant.” To the giving of this instruction the defendant excepted. The case is brought here by writ of error. The instruction given by the court for the plaintiff, as above set forth, raises the only matter for our consideration.

We cannot see how, from the record, as it is now before us, the Circuit Court could tell the jury that “it is admitted by defendant that plaintiff was in partnership with him in the blacksmith shop and tools.” There is no evidence of any admissions by defendant about the partnership, and we suppose the court founded this instruction upon the defendant’s answer alone. We do not consider that the answer warrants any such instruction. True, it states what would be sufficient to charge McCauley and Cleveland as partners, in favor of third persons ; but this may very often occur, and persons who are in reality not partners, may, from their acts, render themselves liable to be considered partners by third persons, and be made responsible as such. But here, the receipt of one half of the profits did not make McCauley a partner with Cleveland in the shop and tools, and there was no evidence which warranted this instruction, other than the answer which denies the partnership. It was error, therefore, to give it.

The instruction is wrong in another point of view, and was calculated to mislead the jury. The court tells the jury, “If they believe the plaintiff, McCauley, paid any amount on the shop and tools to the defendant, that the plaintiff is entitled to recover the amount so paid ; also, entitled to recover from defendant half the amount for which the shop and tools were sold by defendant.” This is obviously incorrect. The defendant is not bound to pay back to plaintiff the consideration money for the shop and tools, which plaintiff was to pay or had paid to him at first; and also, pay to him half of the price for which defendant afterwards sold the shop and tools.

The Circuit Court erred in giving this instruction ; its judgment is therefore, with the consent of the other judges, reversed, and this case is remanded for further proceedings.


text:
    Major, Respondent, vs. Harrison, Appellant.
    1. Judgment reversed for an insufficient finding of the facts.

      Error to Howard Circuit Court.

    Harrison, being summoned as garnishee under an execution in favor of Major against McMullin, answered that he hired a slave from McMullin, for a specific period, at a rate agreed upon, but that the slave was diseased at the time of the hiring and known to be so by McMullin, and died of the disease shortly after coming into his possession, without having done any work for him, and so he did not owe any thing for the hire. The plaintiff replied that the slave was not diseased when hired, or that if he was, McMullin had no knowledge of the fact. The court, trying the issue without a jury, found the facts to be, that the slave was well known to Harrison, and that the slave’s wife belonged to and lived with him ; that McMullin hired the slave on the 1st of January, 1850, at which time Harrison also tried to hire him ; that McMullin kept the slave about two months, during part of which time he was unwell, which was known to Harrison; and that in February, 1850, Harrison proposed to McMullin to hire the slave of him for the balance of the year, and did so ; that McMullin made no representations ; and that shortly after Harrison took possession of him, the slave, from sickness, became unable to work and continued so until he died. Upon these facts, the court declared that Harrison was liable as garnishee for the hire.
    Gardenhire, for plaintiff in error.
    Clark, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This was a case peculiarly appropriate for a trial by a jury. It was one involving a question of fraud in fact. We deem the finding of the court insufficient. The question was, whether McMullin hired the slave to the appellant, Harrison, knowing that he was diseased. From the finding of the court, it would seem that this allegation was met with the fact, though it was not set up as a defence in the answer, that the state of the slave, as to health, was known to the appellant. Now the finding of the court, in relation to this matter, we deem insufficient. We cannot, from the circumstances set forth in the finding, infer that the diseased state of the slave was known to the appellant. Because the slave had a wife at the house of the appellant, and that the appellant wished, some time before, to hire the slave himself, it does not follow, as a matter of law, that he knew the condition of the slave, as to health. What a jury would do, in such a ease, we cannot say ; but surely, from these circumstances alone, we' would never draw the conclusion that the appellant knew that the slave was diseased.

Judge Ryland concurring, the judgment will be reversed, and the cause remanded ; Judge Leonard not sitting.


author: Ryland, Judge.

text:
    Sickles et al., Respondents, vs. Abbott et al., Appellants.
    1. Judgment affirmed, because no exceptions were saved, the case having originated before a justice of the peace.

      Appeal from Carroll Circuit Court.

    King, for appellants.

      Gardenhire, for respondents.
   Ryland, Judge.

This was a suit on a note originally commenced before a justice of the peace. Judgment there given for the plaintiffs; the defendants appealed to the Circuit Court.

On the trial in the Circuit Court, the cause was submitted to the court without a jury, and the court found a general verdict for the plaintiffs. Judgment was rendered accordingly.

The record shows no exceptions to any testimony, either admitted or excluded. No instructions were asked, or refused, or given. No exceptions being saved, the judgment must be affirmed.

Notwithstanding the numerous decisions to this point, of our court, such records still present themselves here. See Todd v. Aiken, at last January term. Terrell v. Hunter, at this term.

Let the judgment be affirmed ; the other judges concurring.


author: Leonard, Judge.

text:
    Derrick, Respondent, vs. Jewett, Appellant.
    1. Judgment reversed for want of a finding of the facts.

      Appeal from Dade Circuit Court.

    Action begun in the Circuit Court to recover the sum of $128, delivered bj tbe plaintiff to the defendant in California, in gold dust, to be paid to plaintiff’s wife in Missouri.
    Wright, for appellant.
    Clark, for respondent.
   Leonard, Judge.

The trial hero was by the court, and the record shows no finding of the facts.

According to the repeated decisions of this court, this is an error, for which the judgment must be reversed, (Bates v. Bower, 17 Mo. Rep. 550. Farrar v. Lyon, 19 Mo. Rep. 122,) and it is reversed accordingly, and the cause remanded.


text:
    Cavin, Plaintiff in Error, vs. Smith & Kerr, Defendants in Error.
    X. The declarations of a party, while in possession of personal property, against his title are admissible evidence against a party claiming under him.

      Error to Polk Circuit Court.

    Action for the conversion of a mare. The defendants purchased the mare at a constable’s sale under an execution in their favor against one Ray. At the trial, the defendants offered evidence of admissions by the plaintiff that he had sold the mare to Ray. The plaintiff, in rebuttal, offered to prove declarations of Ray that the sale to him was upon a condition, and that the condition had never been complied with. This evidence was excluded, tbe plaintiff excepted, and, after a ver-dict and judgment against him, sued out this writ o£ error.

      F. P. Wright, for plaintiff in error,
    that there "was error -in the exclusion of- Ray’s admissions, cited 2 Stark.'Ev. part 2, p. 32. 1 Taunt. 139.
    Otter, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The court should have admitted the testimony of the witmess, Mayfield. The defendant’s atfswer to the action, as appears from the evidence, though not in the pleadings, rested on the assumption that Ray was the owner of the mare. Now, it 'is a settled rule of law that a party cannot create evidence for himself. Yet he may, by his acts and declarations, make evidence against himself. If Ray was the owner of the mare, although he could not confirm or strengthen his title by his own declarations, yet his declarations may weaken or disprove his ¿title. The possessor of property, nothing more appearing, is presumed by the law to be the owner of it. The law raises this presumption in favor of him who is in the possession of property. Now if he will, against his interest and against the presumption of law, make declarations or admissions, those declarations and admissions are, like all others, made against a party’s'interest, and will be evidence against him. When one is in possession of property, the presumption of law is, that it is his, if nothing more appears. Now, if he will, by his words, show that the property is not his, why should not those admissions -be evidence against him, just as any nther admissions made against his interest-?

In order to show property out of another, is it not every day’s practice to receive his declarations or admissions that it does not belong to him, or that he has only a limited interest in it, or holds it in a fiduciary capacity ? ( Turner v. Belden, 9 Mo. Rep. 797.)

The answer did nothing more than controvert the allegations of the petition. IE the defendants acquired title, in any way, to the property, they should have set up the matter in their answer. As the pleadings now stand, there is nothing but a denial of the conversion alleged in the petition. This, however, can be of little consequence, as the judgment is reversed on another ground, and the cause will be remanded, when there will be an opportunity of amending the pleadings, if the parties should see fit.

Reversed and’ remanded'; the other judges concur.