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    Wood, Respondent, vs. Simmons, Appellant.
    1. Upon a sentence of divorce, a wife becomes entitled to all choses in action not previously reduced into possession by the husband, as by survivorship upon the death of the husband.
    2. A particular assignment for value by husband and wife of the wife’s re-versionary interest in a chattel, expectant on the death of a tenant for life, does not defeat the wife’s right of survivorship, where the husband dies before the death of the tenant for life. The assignment, in such a case, does not operate as a constructive reduction into possession by the husband.

      Appeal from Saline Circuit Court.

    In 1836, the plaintiff, wbo was the daughter of Rice Wood, deceased, intermarried- with Albert Gr. Wood. In 1848, her father died intestate, leaving a widow and four children, including herself. Afterwards, on a division of the estate, the widow’s dower was assigned and delivered to her, and consisted of real estate, some slaves and other personal property. In May, 1849, the plaintiff and her husband, by their deed of that date, duly acknowledged and certified so as to pass the wife’s real estate, in consideration of $500, sold to the defendant, Simmons, the wife’s interest in this dower property. In 1850, the plaintiff obtained a sentence of divorce against her husband, dissolving the marriage. Afterwards, in 1850, the plaintiff’s mother died. The defendant now claims the wife’s interest in the-dower slaves under the deed of May, 1849. The plaintiff has several children, all the property received from her father went into the husband’s possession and was squandered by him, and she left to support herself and children.
    The prayer of the plaintiff’s petition was, that the property be secured to her for the support of herself and children, and the defendant restrained from insisting on his title acquired by the deed,of 1849. The defendant'.demurred for want of sufficient matter to constitute a cause of action and for defect of parties. The demurrer was overruled, and the defendant failing to answer, the court decreed a perpetual injunction against the defendant’s setting up title under the deed to the slaves and other personal property, and defendant appealed.

      A. Leonard, for appellant.
    1. The relation of husband and wife between these parties is extinguished by the divorce, and so no question can arise now about the wife’s equity to a settlement, or her right to a maintenance out of her own property, founded on her husband’s desertion or inability to support her. 2. A conveyance for value by husband and wife of her reversionary interest in a chose in action passes her interest to the assignee, discharged of her right of survivorship. (4 Rawle, 472. -2 Atk. 207. 2 Atk. 549. 2 P. W’ms, 608. 2 Kent’s Comm. (7th ed.) 117. 1 Tucker’s Comm. 118.) 3. If this be otherwise, her interest in these dower slaves is a vested legal estate in remainder, and not a mere reversionary interest in a chose in action, in which the wife has a right of survivorship. (2 Conn. Rep. 567. 3 Howard (Miss.) Rep. 394. 5 Littell, 258. 2 B. Monroe, 77. 10 B. Monroe, 412. 3 Littell, 277.) 4. If the plaintiff’s right to the property be admitted, there is no ground stated in this petition to warrant this judgment against the defendant. (2 Story’s Eq. 700, a, p. 13. 3 Brown’s Ch. Rep. 15. 5 Yesey, 286. 3 Mylne & Craig, 107, (14 Eng. Ch. Rep.)

      Napton, for respondent.
    1. All assignments made by the husband of the wife’s outstanding personal chattel, which is not and cannot then be reduced into possession, whether the assignment be in bankruptcy, or under the insolvent acts, or to trustees for the payment of debts, or to a purchaser for valuable consideration, pass only the interest which the husband has, subject to the wife’s legal right by survivorship. (Purdew v. Jackson, 1 Russ. Ch. Rep. 1. Hornsby v. Lee, 2 Madd. 16. Mitfordv. Mitford, 9 Ves. 87. Stamper v. Barker, 5 Mad. 157. Morley v. Wright, 11 Yes. 17. Honner v. Morton, 3 Russ. 65. Styfe. y. Everett, 1 Mylne & Craig, 37. Woodland v. Crouc/ier, 12 Ves. 177. Richards v. Chambers, 10 Ves. 580. White v. St. Barbe, 1 Ves. & B. 405. Rickard v. Roberts, 3 Madd. 385. Pierce v. Thorn-by, 2 Sim. 181. Ellison v. Elwin, 13 id. 309. Burnett v. Kynaston, 2 Vern. 462. Gray v. Kentish, 1 Atk. 280. Gill. Eq. R. 38. 2 Story’s Eq. §1413. 2 Kent’s Comm. 116,119, notes.) 2. It will not be disputed that in this case, the wife would be entitled to her equity, if the husband were living. If it is, there is an unbroken current of authorities in favor of the proposition, both English and American. (3 Kent’s Comm. (7th ed.) p. 138. 2 Story’s Eq. tit. Husb. & Wife. Schuyler v. Hoyt, 5 John. Ch. Rep. 208. 4 John. Ch. Rep. 318. 6 John. Ch. Rep. 178. 5 John. Ch. Rep. 464. 8 Cow. 590.) That the husband’s death does not affect the wife’s equity, except in cases where she gets the the whole as survivor, is abundantly shown by the authorities. (5 J. 0. E. 475. ’ 2 Atk. 417. 3 Yes. 506. 1 Russ. Ch. Rep. 28.) 3. It is immaterial whether the wife took in this case by sur-vivorship, or was merely entitled to her equity. In either event, the judgment upon the demurrer must be sustained. The court may, in its discretion, give the whole or a part only of the property to the wife, according to the circumstances, and there is nothing in the record to show any improper exercise of discretion in giving the whole. On the contrary, the facts disclosed in the petition show a case in which she was clearly entitled to the whole.
   Ryland, Judge,

delivered the opinion of the court.

The questions involved in this case are of much importance to the community, and have engaged our earnest and serious attention. These questions have met with different solutions in some of the states of our Union. But we are inclined to think that the weight of authority, both in England and in this country, is on the side of the plaintiff, Wood. Do the facts in this case authorize the court to declare that, in the present state of the law, the wife’s right of survivorship must prevail over the assignee of the husband and wife ? We answer in the affirmative.

1. Here, the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband; and the wife must be looked upon as his widow. In the case of Browning v. Headly, (2 Rob. Va. Rep. 340,) the divorce obtained by the wife from the husband by the legislature of Kentucky, was considered as operating as the civil death of the husband. Judge Stanard said : “I concur in the opinion of Judge Allen, that the effect of the act of divorce upon the rights of the wife is to place her in the same position as if her husband had then died.” I dismiss, therefore, this question, by stating that there is no doubt of the correctness of the judgment below, so far as it considers the divorce of the wife from the husband operating so as to place the wife in the situation she would have occupied had her husband then died.

2. But the more important question, “ does the conveyance for value of the husband and wife of the wife’s reversionary interest in the slaves and other property belonging to her mother in her dower right, pass the wife’s interest to the assignee, discharged of her right of survivorship ?” remains yet for our consideration. This question we, after considering the various authorities, unhesitatingly answer in the negative.

By the common law, the husband was entitled to administration on his deceased wife’s estate, and, like all other administrators, had exclusive enjoyment of the residuum after payment of debts.

The statute of 22 and 23 Charles II, chap. 10, compelled the administrator, after the payment of funeral charges, debts, and all expenses, to distribute the remainder of the personal, estate to the wife and children, and children’s children, if there-be any, or otherwise to the next of kindred to the dead person..

There were doubts whether, under this last statute, the husband was not, like all other administrators, compelled to make-distribution among the next of kin of the deceased wife.

To remove these doubts, the 25th section of 29 Charles II was enacted, which placed the estates of feme coverts dying-intestate without the operation of the 22 and 23 Charles II,. and left their husbands the same power and privileges- as they • had before the passage of the 22 and 23 Charles II. The husband then succeeded, by his right to administer upon the estate • of his wife, after payment of funeral expenses and debts, to - the residuum of her estate, discharged from the burden of distribution among her next of kin. This rule of the common law - has been adopted by some of the states of our Union, and not. by others. The state of Missouri has not adopted it. Nor can . the husband, as the wife’s administrator, receive the estate of the wife with us, discharged from the burden-of distribution;, but, like other administrators, he must account to those entitled,, under our laws, to tbe same. We call in tbe kin of tbe wife from tbe four corners of tbe earth, and distribute to them before the husband can take.

In the case of Leaky’s Mm’r v. Maupm, (10 Mo. Rep. 372,) this court held the following doctrine — the opinion delivered by Judge Scott, the other judges concurring : Marriage is, by law, an unqualified gift to the husband of all the personal estate of the wife in her possession at the time of its taking place, and if be should die in an hour after the marriage, having received a large personal estate from the wife, all of that estate, except what our law allows her as dower, would go to the kindred of the husband and not to the wife. But as to choses in action, or mere rights to receive money or property from another, the law only gives the husband a qualified right to them, viz : on condition that he reduces them to ■possession during coverture, and if he fails to do this, if the •wife survive, she will be entitled to them. This principle is ■applicable as well to choses belonging to the wife at the time of marriage, as to those which accrue to her during coverture. The distinction between the two classes of choses is this, that, in a suit to recover the former, the wife must be joined with the husband ; in a suit for the latter, the husband may join his wife or not, at his election ; if he sues alone and recovers judgment, it is an election to have the chattel in his own right freed from the right of survivorship in the wife ; if he joins her in the suit, her right of survivorship still continues after judgment.” This decision has an important bearing on the case now before us. The right of the wife’s survivorship to choses notvreduced by the husband into possession before his death is plainly .announced, and that there is no distinction in such an event between choses at the marriage and choses during coverture. We must then see if there had been such a reduction into possession as will enable the husband to assign, discharged from the right of the wife’s survivorship.

In Purdew v. Jackson, reported in 1 Russ. Ch. Rep. 1, Sir Thomas Plumer, Master of the Rolls, held that, " Where husband and wife, by deed executed by both, assign to a purchaser for valuable consideration a moiety of a share of an ascertained fund, in which the wife has a vested interest in remainder, expectant on the death of a. tenant for life of that fund, and both the wife and the tenant for life outlive the husband, the wife is entitled, by right of survivorship, to claim the whole of her share of the fund against such particular assignee for a valuable consideration.” This case was determined in February, 1824, and may now be considered as the settled doctrine of the English chancery. This case was most thoroughly investigated, being twice argued by Mr. Sugden for the particular assignee for value, and by Mr. Shadwell for the wife. A general review of the English cases will be found in this case.

Sir Thomas Plumer, Master of the Rolls, begins by saying : The property in question is a moiety of one-seventh share of a fund in court, which Mrs. Rolton was entitled to have transferred to her, upon the death of Isabella Purdew. In October, 1812, she and her husband transferred, for a valuable consideration, this moiety to Rose. In the assignment, Bolton contracted that, immediately after the death of Isabella Purdew, Rose should have the right to demand and sue for this personal chattel in the name of Mr. and Mrs. Bolton, or either of them, and that, in the mean time, his life should be insured. Bolton died in 1819, in the life time both of Isabella Purdew and Mrs. Bolton. The tenant for life being now dead, Rose insists upon his right under the assignment, and that raises the general question whether, where the wife has an interest in reversion or remainder, in a personal chattel, expectant on the death of another person, and the husband assigns this interest for valuable consideration and dies before the determination of the life estate, the right of the surviving wife is barred.”

The Master of the Rolls proceeds : “ There are two points which deserve attention; first, what is the nature of the legal right of the husband in a personal chattel to which the wife is entitled in reversion or remainder ; secondly, has the person to whom, for valuable consideration, the husband assigns a chattel so circumstanced, tbe same right with his assignor, or has he a different or a better right ?” He then quotes from Mr. Roper’s Treatise on the law of Husband and Wife : ‘ Marriage is only a qualified gift to the husband of his wife’s choses in action, viz : upon condition that he reduce them into possession during its continuance ; for if he happen to die before his wife, without having reduced such property into possession, she, and not his personal representatives, will be entitled to it.”

“What then, is meant by a chose in action? The terms “ chose in action,” and “ reduced into possession,” are legal phrases, not borrowed from a court of equity, but derived from the language and doctrines of the common law ; and in dealing with them, it is of importance that we should confine ourselves strictly to the subject before us, “ a personal chattel,” and not perplex ourselves with principles applicable only to real property. The right of property in a personal chattel is inseparable from possession. The law of England does not know such a thing as the possession of a personal chattel being in one man, unless by the authority of the rightful owner, while the right of property is in another. If you have not the possession, you may have an immediate right of action; but till you recover the possession of the chattel, you have not the right of property. When it is reduced into possession, the property in it vests, and not before; for the property in a personal chattel does not become complete till possession is obtained. Therefore, the law of England, speaking of the different sorts of property which a married woman may have, and designating a chose in action to be a mere right of action to a personal chattel not in actual possession, holds that the husband must, as a condition, without fulfilment of which he does not acquire a right to it, reduce the thing into possession ; that is, he must make the property his own, for, without possession, the property is not his ; he has only a right of action, which will ultimately ^belong either to himself or to his wife, according as the one or the other may happen to survive. Now, in 1812, the property in question, strictly speaking, was a chose in action; it was not, it could, not be in possession ; not only was it notin possession, but there was not even a present right o£ action; the right of action was future, and would necessarily remain so till the death of Isabella Purdew. The thing belonging to the wife was therefore a personal chattel, legally denominated a chose in action, as contra distinguished from a chattel reduced into possession.”

“ The next question is, “ What is the effect of the assignment ?” A great deal of fallacy has been introduced into this part of the argument, from not considering that an assignment makes no alteration in the thing transferred. When the husband has assigned the wife’s chose in action, does the thing assigned continue to be a chose in action, or does it become a personal chattel in possession ? If it does not continue after the transfer to be a chose in action, what makes it cease to be so ? A chose in action cannot cease to be a chose in action, except by being reduced into possession; but it would be a contradiction in terms, in the very statement of the case, to say that this fund, which could not be reduced into possession till 1822, was reduced into possession in 1812. It is in vain to talk of Bolton’s assignment as being a constructive reduction into possession. In cases where there is a present right, and an assignment of it is immediately followed by possession of the thing, the assignment, being the commencement of that immediate actual possession, may be regarded as a kind of constructive possession. But to say that the assignment of a chose in action, which is at the time incapable of being reduced into possession, is to be construed as a reduction of it into possession, is to ascribe to the assignment the effect of totally transforming the nature of the thing assigned. Up to the time of Isabella Purdew’s death, the thing which Bolton assigned continued to be a chose in action. While it Was in that state, Bolton died without having been able to fulfil the condition on which alone the law gives the husband the choses in action of the wife; therefore, the legal right of the wife now attaches upon it, and if a court of equity were to take it from her, equity would not follow, but oppose the law. The wife is entitled by the law to take the chance of outliving the husband, and it is the law which says that, if she survives him, the dioses in action which were formerly her’s, shall continue to belong to her. That is the clear legal doctrine, and there is nothing in equity to modify or alter it. Even where a chose in action of the wife is sought to be bound by a decree in equity, if the hus - band dies before the thing ceases to be a chose in action, that is, before there is an order for the payment of the money, the consequence in equity is precisely the same as it is at law under analogous circumstances —the surviving wife is entitled. Her title, in such cases, is not a creature of this court; it is not a mere matter of practice or regulation here; it is the wife’s positive legal right — the result of a fixed rule of law.”

In the same case, the Master of the Rolls said : “ The doctrine respecting assignments by operation of law has been long settled by a train of cases from Grey v. Kentish to the present time, without one authority to the contrary. The wife’s equity uniformly prevails against the assignees of the bankrupt.” "An opinion has certainly prevailed,” says Sir Thomas Plumer, “that a distinction subsists between an assignment by operation of law, and an assignment for a valuable consideration to an individual by contract; that the former is no bar to the right of the surviving wife, but that the latter is.” He continues : “ That there may be, for some purposes, a difference between these two species of assignment, may be true ; but that they should be productive of effects so directly contrary in this instance,'is a proposition for which I can find no solid ground. I think both kinds of assignment ought to have the same effect,- and that it would be manifest inconsistency to decide the contrary. In both cases, the assignment passes the share of the wife, but passes it sub modo, viz : provided the assignees receive the share, or its value, during the life of the husband; but if he dies before the share is reduced into possession, and it is left"to be a chose inaction when the interest accrues, the surviving wife is entitled, as well against the assignees for value, as against the assignees by operation of law.”

Chancellor Kent says : The court of chancery has always discovered an anxiety to provide for the wife out of her property in action, which the husband may seek to recover. If he takes possession in the character of trustee, and not of the husband, it is not such a possession as will bar the right of the wife to the property, if she survives him. The property must come under the actual control and possession of the husband, qua,si' husband, or the wife will take as survivor,.instead of the personal representatives of the husband.”

A general assignment in bankruptcy, or under insolvent laws, passes the wife’s property and her choses in action, but subject to her right of survivorship ; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife; for the assignees possess the same rights as the husband before the bankruptcy, and none other. It has been accordingly held that a legacy in stock was not reduced to possession by such an assignment, so as to bar the wife’s right of survivorship, and the wife took it by survivorship as against the assignees.

“The wife’s equity to a reasonable provision out of her property, for the support of herself and her children, makes a distinguished figure in the modern chancery cases, which which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife’s property, or if her fortune be within the reach of the court, he must do what is equitable, by making a reasonable provision out of it for the maintenance of the wife and her children. Whether the suit for the wife’s debt, legacy or portion be by the husband or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a portion of the property. The provision is to be proportioned, not merely to that part of the equitable portion'of the wife’s estate which the husband seeks, but to the whole of her personal fortune, including what the husband bad previously received. And perhaps chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife’s personal property in action, unless he would make a competent provision for her.” (2 Kent’s Com. 188, 139.)

In Hayward v. Hayward, (20 Pick. 519,) the Supreme Court of Massachusetts declared that, “ if a distributive share of intestate personal estate accrue to a married woman during coverture, and the husband die before the decree of distribution, and without any act on his part reducing it to possession, it survives to the wife.” In this case, Judge- Dewey makes a general review of the English cases, and overthrows the case of Griswold v. Penniman, (2 Conn. 564,) relied on by the defendant’s counsel in this present case to support, in part, his propositions.

I shall not notice, in extenso, this opinion of Dewey, Judge ; it is a lucid and able argument in support of what I consider the law on the subject of the wife’s right of survivorship. He says : “■ The general rule, as to choses in action which belong to the wife at the time of the marriage, is well settled. They do not vest absolutely in the husband. He acquires by marriage only an inchoate right: he may reduce them into possession and take the avails of them ; but if the wife survives the husband, and the choses remain uncollected, she is entitled to them, and they do not pass to his representatives.” Such he shows also to be the law in regard to choses in action accruing to the wife during coverture, and the' attempted distinction between them is without principle.

In Schuyler v. Hoyle, (5 John. Ch. Rep. 176,) decided in 1821, before.the great case of Purdew v. Jackson, for that was in 1824, Chancellor Kent said: " After looking into the authorities, and upon a consideration of the doctrine of the cases, there remains no doubt in my mind, that the wife was entitled, as survivor, to all that portion of her distributive share which remained in the hands of the administrator- of Mr. Fisher, at the time of her husband’s death. We should act in contradiction to the whole course of decisions, if we were to consider the share of the wife, before it passed out of the hands of the administrator, as being reduced to the husband’s possession.”

In Pinkard et al. v. Smith & wife, (Littell’s Selected Cases, 336, 387,) it is laid down that a vested remainder in slaves, accruing to a woman during coverture, vests in her husband as much as a right in possession would ; and yet it was held that, if the husband should die before the determination of the particular estate on which the remainder depended, it would survive to his wife. Now personal estate of the wife, which the husband reduces into possession, becomes his, and goes to his personal representatives, and not to her’s. There is a seeming inconsistency in some of the Yirginia decisions, and this Kentucky case is founded on the Yirginia decisions. In this case, (Pinkard v. Smith,) Judge Owsley says : “But notwithstanding the husband, as he survived his wife, might have maintained an action in his own name to recover the slaves, it does not thence follow that the wife would not have been entitled to them as survivor of her husband, had he died before her. To recover the slaves during coverture, the suit might have been brought either in the- name of the husband alone, or in the name of the husband and wife. It is a general rule that, wherever the suit maybe brought either in the name of husband and wife, or in the name of the husband, the right will survive to the survivor. These observations have been made on the supposition that the interest which a husband, gains in the slaves accruing to the wife during coverture, is to be regulated by the principles of the common law in relation to chattels ; and that •we have supposed, because we infer that the statute of this country has placed slaves, as to the ■ husband’s interest, on the footing of chattels. The statute of this country, to which we allude, (2 Digest 1156,) was taken from a statute of Yirginia, in force at the separation; and by the appellate court of this country, this statute has been construed to place slaves on a level with chattels accruing to the wife during coverture. Accordingly, in 2 Call’s Rep. 447, it was held that slaves devised to the wife during coverture, and not reduced to the husband’s possession, otherwise than in his right of executor of the devi-sor, survived to his wife. So, in a subsequent case, (2 Hen. & Munf. 881,) the principle was fully recognized that, on the death of the husband during the existence of a particular estate in slaves, the remainder, to which the wife was entitled in her right during coverture, survived to her.”

In the case of Upshan v. Upshan et al., Judge Tucker said: " True it is, William Upshan, by his codicil, gave the appel-lees what he had no power to bequeath, his wife’s interest in^ , the dower slaves held by her mother, being merely a rever-'J sionary interest, which, in the event of her surviving her husband, without his disposing thereof in his life-time, or reducing the slaves into possession, would survive to her. But it is clear from the words of the codicil, that he thought the slaves were his own, and that he had a power to bequeath them by his will. This was clearly a misconception of his right in respect to them; for, though he might have sold his wife’s reversiona-ry interest, it being a vested interest, yet, if he neglected so to do, ho could not dispose of it by will, but it would survive to her.”

I confess that there appears to me an absurdity in this opinion of Judge Tucker. Here, the wife’s interest in slaves belonging to her mother, in right of dower, is said to be her re-versionary interest, but, at the same time, a vested interest. The wife and husband could not, by any process at law or equity, during the life of the mother, have reduced these ne-groes into their possession. They had no right to the negroes which could be enforced by taking them out of the possession of the real owner for the time being, that is, the mother. The husband could not sell them, so as to deprive his wife of the right of survivorship; nor could husband and wife sell them, so as to deprive her of her right of survivorship by any principles known to the common law ; for a tenant for life had the possession of them. The husband, in the nature of things, could not have reduced them into possession, and all he could have sold would be his right to reduce them into possession after the expiration of the estate for life, and his assignee could have obtained, by such sale, no other or further right than the husband had. Did or could such a sale by the husband change this property of the wife and reduce it to possession ? Was it not still a chose in action after such a sale ? Could the assig-nee of the husband have -reduced it from a chose in action to a chose in possession ?

I know that there are legal fictions, and upon one of these fictions is grounded the distinction that a chose in action, accruing to the wife during coverture, vests, at once, in her her husband, because she and her husband are one person in law, and all such choses in action, thus accruing during coverture, are vested at once in the husband, because she is merged in him ; but choses in action, at the marriage, are not thus vested at once, but must be reduced into possession. (Griswold v. Penniman, 2 Conn. Rep. 566.)

In the recent case of Browning v. Headly, (2 Rob. Rep. 340,) the rule laid down by Sir Thomas Plumer, in Pur dew v. Jackson, which rule was afterwards confirmed by Lord Lynd-hurst, in Honner v. Morton, (3 Russ. Rep. 65,) that, where a husband assigns personal property, in which his wife has a reversionary interest, expectant on the death of the tenant for life, and the wife and tenant for life both outlive the husband, the wife is entitled by survivorship, in preference to the as-signee, is recognized as sound by Judge Allen.

This case also recognizes the doctrine of the English chancery that, where an absolute equitable interest is given to the wife, the court will not permit the husband to recover it, without making provision for the wife, and that the husband’s assignee, whether general or particular, takes his interest, subject to the same equity. In this case also, the doctrine of “vested interest” is still kept up, and the husband’s assignment of the wife’s interest or share in her father’s estate, before the executors assent to pay any portion of it, is held good against the wife in favor of the husband’s assignee. The Judge says : ■“ I consider the interest of the wife in her father’s estate, at the time of the assignment, as a present interest, susceptible of| being reduced into possession; and that the assignment was a special assignment for value, and therefore that she could not take by survivorship.” Allen, Judge. Stanard, J. : I concur that the assignee from the husband, for valuable consideration, of .a present (as distinguished from a reversionary) interest of the wife, has a valid title against the wife, though she survives her husband.” This assignee, however, got nothing; for, 'under the practice of the courts of the English chancery, the husband and his assignee must make a reasonable provision for the wife, and the court gave the whole of the wife’s share to her as a reasonable provision. Judge Allen says : “ The wife’s interest was susceptible of being reduced into possession, and being a present interest, the assignee must hold.” Judge Stanard agrees, because the wife’s interest is a present interest, con-tradistinguishable from a reversionary interest. We may therefore conclude that, under the rule of the English chancery, and the principles of Purdew v. Jackson, and Honner v. Morton, the sale by the husband of his wife’s interest in the slaves held by her mother in dower, the mother and wife both outliving the husband, will be subject to the wife’s right of sur-vivorship, should the case ever occur in Virginia. The husband, in our law, has no right to administer upon his wife’s estate, and take her estate for his own benefit, as husband. He must reduce his wife’s choses in action in her life-time, and thereby become possessed of the same in his own right, or he will afterwards, as administrator, if he recovers them, be liable to account to her next of kin for the same. In the case from 4 Rawle’s Rep. 468, it was .held that a deed from a husband conveying the wife’s choses in action to trustees for the benefit of the wife and child, though not a reduction of such choses in action into possession, nevertheless passes not only the interest of the husband, but that of the wife also to the trustees, upon the trusts declared in the deed. Consequently, upon the death of the husband, such choses in action do not survive to the wife, so as to entitle a second husband to claim them as her property. Chief Justice Gibson, after stating the objection to this settlement, rested on a former decision of their court, re.-quiring a valuable consideration for the contract of equitable assignment, in order to bar the wife’s survivorship, asks the question, “Would a chancellor withhold his assistance from what this palpably is, a settlement for the advantage of the wife herself, and in restraint of the husband’s power to squander the fragments of her estate ?” He continues : “ This is a reasonable settlement out of the wife’s own property, on herself and child ; and it would be a narrow construction of the marital powers of the husband, that would suffer the trust to fail for an omission to reduce the fund into actual possession, before the execution of the instrument.” The balance of the opinion of this learned judge, is outside of the case ; it was obviously prepared to shake the authority of the decisions of English chancellors and Masters of the Rolls, in the cases of Purdew v. Jackson, Hornsby v. Lee, and Honner v. Morton. I am still satisfied with the decisions of those cases, and consider them best calculated to protect the wife and children — the very thing that Chief Justice Gibson was doing in this case — for which he had to condemn the narrow policy which required the husband to reduce into possession the wife’s choses in action, before he could dispose of them so as to cut off the wife’s right of survivorship. It is admitted that this conveyance of the husband was not a reduction into possession. Then the law will not give him power to dispose of the wife’s choses in action, not reduced into his possession during coverture, so as to bar her right of survivorship. All the reasoning on this subject, when not founded on the principles of the law concerning the husband’s authority over his wife’s choses in action, however ingenious, must give way before the solid learning and plain common-sense view of the modern English chancery cases on the same subject.

I Have not deemed it necessary to review all the cases cited by the counsel for the parties in this case. Upon an examination of them, my mind has come to the conclusion, without a doubt, that the deed of the husband and wife in this case has not the power, under the circumstances of the case, to bar the wife’s right of survivorship. I am also equally well satisfied that, if the deed had that effect as an assignment from the husband and wife to a particular assignee for value, yet that such assignee must make reasonable provision for the wife, and would take the dioses in action liable to this provision for the wife. Here, the husband and wife, by deed, sold the wife’s interest in the dower estate of the wife’s mother. The mother was still living after this sale, and before the mother’s death the plaintiff obtained a sentence of divorce from her husband. The mother died after this divorce. Now, it is plainly to be seen that, if this divorce operates as the death of the husband would, then this chose in action never was capable of being reduced in his life-time into his possession. The mother, the tenant for life, had the sole and exclusive right of possession, and had also the actual possession, until after the civil death of the husband of her daughter. Then, the husband, during his life, being unable to reduce this property of his wife into actual possession, shall his deed to his assignee have the effect of making such actual possession in him ? His assignment of a chose in action, which could immediately be reduced into possession, may be considered as a constructive reduction into possession, because that immediately follows, the property is changed, and the wife’s right divested. But where neither the wife nor husband, nor their assignee, have the power to reduce into possession the chases of the wife, until an event must take place in future, we think that it would be absurd to say that, in such a case, the assignment of husband and wife, for value, did reduce such chose in action into possession ; and the assignee would take it, were the husband to die before the happening of such future event, freed from the wife’s right of sur-vivorship. To call the assignment, in this ease, a constructive reduction into possession — a possession in some sense — tantamount to posssession js to suppose two things to be the same which are directly opposite to each other; it is to suppose a a chose in action to be a thing constructively reduced into possession ; it cannot be both; no construction can make things opposite in their nature to be the same things.

Wherever such assignments have been considered reduction into possession, the dioses assigned were capable of being immediately possessed; there was an immediate right of possession, which was or could be soon completed or followed by ac-actual possession, (as a judgment, but before execution;) in these, the property may be considered as changed, and the condition substantially fulfilled. Sir Thomas Plumer’s opinion, in Purdew v. Jackson, (p. 70 :) “ The wife’s reversionary interest is incapable, in this case, of being reduced into the possession of the husband, until the death of the tenant for life; the death, then, of the husband happening before the death of the tenant for life,- his previous assignment cannot affect the wife’s right as survivor.”

We do not consider this reversionary interest in the wife as a vested present interest in possession, neither in her nor in her husband ; and we think the authorities amply sustain us in this opinion, notwithstanding the Virginia decisions to the contrary. We cannot see how, if the reversionary-interest of the wife in the slaves belonging to her mother,” as her dower property, be a vested present interest in her husband, so that he can sell it, and destroy thereby the wife’s survivorship, why he cannot will it away, and destroy her right by will. If he were to reduce her dioses in action into his possession, he might will them away, because they become his absolutely by such reduction ; the property becomes changed by being turned into his possession. He can will away such property ; why not will away a present vested interest in him to his wife’s reversionary interest ? Is it because this interest ceases at his death, and being no will until his death, when it becomes a will, there is no interest for it to operate on ? And yet he can sell, and after his death, the assignee will hold against his wife’s right of survi-vorship, though the particular estate did pot end until after her husband’s death! But I will pursue this subject no further, being satisfied that the law is with the plaintiff in this case.

There now remains but one further question, which is, whether the plaintiff’s petition states sufficient facts to warrant the judgment of the court below.

The plaintiff’s petition shows that all the property which was given to her by way of advancement, and all which she got from her father’s estate has been squandered by her husband; that she is left alone, with several small children, to depend upon her own personal labor for a support; that the defendant, Simmons, has, by some means or other, got several of the slaves which came to her from her father’s estate; and that he will endeavor to get the remainder of her estate, which comes' to her from her mother’s death, out of her mother’s dower; that, before her mother’s death, she was divorced from her husband ; that Simmons claims this property under the contract made by her husband and herself, before she was entitled to have the interest in her mother’s dower estate. We are satisfied the petition states grounds sufficient for the interference of the court below, and that, in right and justice, the defendant should be prohibited and restrained from interfering with the fragments of the estate of this poor woman.

Upon the whole case, we-are satisfied the law has been properly declared, and the judgment of the court below is affirmed ;

Judge Scott concurring. Judge Leonard was not on the bench when this cause was argued.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    The Chouteau Spring Company, Respondent, vs. Harris, Appellant.
    The charter of an incorporated company provided that the stock might he «transferred on the hooks of the company.” The company was authorized “ to regulate the transfer of stock” hy by-laws. A provision in the charter authorized the company, in certain cases, to make assessments on “stockholdersbeyond their shares of stock. -Held:

      1. That no such assessment could be made on a party after he had ceased to he a member, by a transfer of his stock.
    2. That the power “ to regulate the transfer” did not include the power to" restrain transfers or prescríbelo whom they might be made, but merely to prescribe the formalities to be observed in making them; and that the company could not prevent a party from selling his stock even to an insolvent person.
    3. That an assignment “ upon the books of the company” was sufficient to effect a change of ownership, without taking out a new certificate in the name of the assignee; and that any transfer in writing was valid against the company, if, being notified, they refused to allow it to be made according to their by-laws.

      Appeal from Cooper Circuit Court.

    This was an action commenced before a justice of the peace-to recover the amount of an assessment made against Harris as a stockholder in the Chouteau Spring company, under the 12th. section of their charter. (Sess. Acts, 1849, p. 168.)
    At the trial in the Circuit Court, upon appeal, it appeared in-evidence that in August, 1851, Marcus Williams assigned nine shares of stock to the defendant, on the books of the companyy and the treasurer issued a new stock certificate to the defendant. Afterwards, in October, 1852, the company being indebted to an amount exceeding their corporate property, a meeting was called and an assessment made upon the stockholders to pay off a portion of the debt.
    Several months before this meeting was held, defendant came into the office, and wrote on the books of the company an assignment of his stock to William J. Pettit. Some days after-wards, defendant went to the office with Pettit, produced his stock certificate, and requested the treasurer to cancel it, and issue another to Pettit. The treasurer refused to do this, assigning as a reason that the company was in debt beyond its assets and Pettit was insolvent. It was in evidence that there were other instances where the treasurer had refused to allow members to transfer their stock to insolvent persons. The certificate had upon its face the words “transferable only on the* books of the company in person or by attorney.”

      The defendant read in evidence an assignment to Pettit, written on a separate piece of paper, and dated June 22, 1852. He also read the charter and by-laws of the company. The tenth section of the charter is as follows :
    §10. The stock of said company shall be deemed personal property, and may be transferred on the books of said company ; and transfers of certificates of stock may be made in such manner as the company may by by law direct.
    The twelfth section authorizes the company to make assessments “ on stockholders” for raising funds required by the company for purposes of improvement or purchasing lands; provided that all assessments shall be equal, and never exceed in any one year fifty per cent, upon each share.
    The by-laws of the company contained no provision whatever in relation to transfers of stock.
    The court instructed the jury to find for the plaintiff, if the defendant was the owner of the stock when the assessment was made, and then instructed them that there was no legal evidence that he was not the owner. All the instructions asked by the defendant were refused, and there was a verdict and judgment for the plaintiff.

      Gardenhire and Draffin, for appellant.
    1. The defendant had a right to sell and transfer his stock upon the books of the •company, and a court would compel the treasurer to issue a certificate to the assignee. (8 Pick. 90. 16 Mass. Rep. 94. Ang. & Ames on Corp. p. 436-37, §1, and p. 439, §8.) 2. The defendant was not liable to be sued by the company for an assessment made -three months’ after he had transferred his .stock to Pettit. (T Term Rep. 36. Ang. & Ames, 426-7, .§8.) 3. The company can only assess stockholders, and not those who have ceased to be stockholders. (Acts of 1849, p. 170, §12.)

      J. W. Morrow, for respondent,
    argued that it was a fraud ■inpon the other members and the creditors of the corporation ■for a stockholder to transfer his stock to an insolvent person, for the purpose of escaping liability to an assessment for debts created for tbe purposes named in the twelfth section of the charter.

      Hayden & Stephens, on the same side,
    insisted in their brief that the evidence and. the instructions in relation to a transfer of the stock before the assessment were wholly immaterial ; that the only question was, whether the debt, to pay which the assessment was made, was contracted during the defendant’s ownership of the stock or not; and that, as this was not denied, the defendant had no right to complain, and the judgment ought not to be disturbed.
   Leonard, Judge,

delivered the opinion of the court.

The question here is, in relation to the correctness of the direction given by the Circuit Court to the jury. The suit was to recover an assessment made on the defendant as a stockholder, pursuant to the twelfth section of the charter, (Sess. Acts, 1849, p. 168,) and the matter litigated at the trial, whether the defendant had so parted with his stock before the assessment as to relieve him from personal responsibility.

It seems to have been assumed in the Circuit Court, that the company’s right to recover depended on the fact that the defendant was the owner of the stock at the time the assessment was made, and although it has been argued otherwise here in one of the briefs, we can see no other ground on which the recovery can stand. The power to make the assessment is derived exclusively from the charter, and has that extent and no other which is there given to it. The words of the charter are: “The company shall have power to make an assessment upon such stockholders, for raising funds required by the company for purposes of improvement or purchasing lands, in such amount as they may deem proper ; provided, however, that all assessments shall be equal, and never exceed in any one year fifty per cent, on each share.”

1. Of course, the legislature never contemplated giving this company power to govern any except its own members, and the authority to levy assessments is therefore confined to stockholders, and is expressly limited to fifty per cent, a year on each share. Any other construction would be unreasonable and could not be admitted. In this, as in most joint stock companies, member and stockholder .are convertible terms — a person cannot be one without also being the other. In the Overseers of the Poor, of Boston, against Sears, (22 Pick. 131,) Shaw, Chief Justice, says: “In all quasi corporations, as cities, towns, parishes, school districts, membership is constituted by living within certain limits. In all bridge, railroad, and turnpike companies, and generally in all corporations having a capital stock and looking to .profit, membership is constituted by a transfer according to the by-laws, without any election on the part of the corporation itself. In some, the assent of the corporation is made necessary to such transfer and consequent ownership.”

It is clear that, under this charter, an assessment can only be laid upon one who is a stockowner at the time ; nor is there any hardship in this, either to the corporate creditors or to the individual members of the company. This is not a private joint stock company, where there is a personal responsibility upon all the partners for all the debts, without any limit, and a mutual responsibility to each other to contribute to the common burthens, from which none can escape by selling out; but a corporation, the distinguishing feature of which is the personal irresponsibility of its members for the company debts beyond their shares of stock, and the individual responsibility provided by statute against the members, in case of insolvency, to double the amount of each member’s stock, for debts contracted during his ownership. The credit, in the one case, is given to the individuals composing the association; in the other, to the corporation, on the faith of its corporate property, and this special statute personal responsibility. Certainly it was most honorable in the members of this company that, instead of abandoning the concern as insolvent to its creditors; to make what they could out of it, they voluntarily imposed an assessment upon themselves to discharge this indebtedness ; but this court cannot, for that reason, or for any purpose, no matter how laudable, disregard the plain law of the land, and subject to this assessment those over whom the company had no authority.

2. Returning, then, to the only question in the case, whether there was any evidence that the defendant had parted with his stock before the assessment was made, the jury were told that there was no such evidence, and the questions discussed at the trial, in order to settle this matter, seem to have been, whether the company could prevent a transfer of stock, by withholding its consent on account of the insolvency of the assignee, and if they could not, whether the present transfer was made with the necessary formalities to effect a change of ownership.

There was evidence that the defendant had made a written assignment of his stock to Mr. Pettit, on a separate paper; that the parties afterwards went to the company’s office, where the defendant wrote an assignment on the stock transfer book of the company, handed to him by the company’s officer ; that a few days after this, the parties went again to cancel the old certificate, and take out a new one in the name of the assignee, which the officer refused, on the alleged ground that the company was in debt beyond its means, and the assignee insolvent. It was also in evidence that no by-law had ever been made regulating the transfer of stock, although the certificates bore on their face the words, “ transferable on the books of the company that the assignee was insolvent, and that the company’3 officer had, on previous occasions, refused to recognize the validity of assignments to insolvent persons.

Stock, in incorporated joint stock companies like the present, is always treated as property, without any declaration in the charter to that effect; and when such a provision is inserted, it is considered as merely cumulative, except sp far as it designates the peculiar character of the property, whether real or personal. One of the incidents of property is its transferability, our idea of property, dominion over a thing, including in it the power of disposing of it at pleasure ; and, of course, the power of disposing of this stock, like the power of disposing of any other property, is incident of common right to the ownership of it; and the words in the charter, “ transferable on the books of the company,” are treated as merely cumulative, pointing out one mode of transfer, but not excluding other modes, where no exclusive words are used. The legislature may grant corporate power to restrain this transferability, but unless it is expressly given, it does not exist; and in favor of the power of disposing, the courts generally construe clauses affecting this right with a view to the particular purpose for which they are inserted, and give them effect to that extent only. (Bank of Utica v. Smally, 2 Cow. Rep. 712. Quiner v. Marblehead Soc. Ins. Co., 10 Mass. 476.)

We remark here that the power of regulating the transfer of stock is, at least under our laws, (R. C. 1845, tit. Corporations,” art. 1, sec. 1,) incident of common right to every corporation ; and although the power in the present charter is expressed in language somewhat different from that used in the general act, it must receive the same construction. This power, however, of regulating transfers of stock, confers no corporate authority to control its transferability by prescribing to whom the owner may sell, and to whom not, or upon what terms. The truth is, the provision is considered as being intended exclusively for the benefit of the company, in order that they may, by proper regulations, provide themselves with the means of knowing who they are bound to treat as members liable to assessment and entitled to vote at corporate meetings and to receive dividends, and it is construed accordingly, the corporation being left to exercise the power or not, at its own pleasure, as being alone interested in the matter.

If any authority is needed in support of what is here said, we may refer to two cases — one in Massachusetts, (Sargent et al., v. Franklin Ins. Co., 8 Pick. 90,) and the other in New York, (Bates v. New York Ins. Co., 3 John. Cases, 238.) These are cases against the companies by the assignees of stock assigned, but not allowed by the companies to be entered upon their books, and the doctrine laid down is, that although the company have the power of regulating the transfer of stock, by prescribing the mode in which it shall be made, the transfer is valid as against the company, if they have notice of it and refuse to allow it the necessary formalities ; and that they cannot withhold these formalities upon the ground that the assignor is in debt to the company. In the Massachusetts case, a general power to regulate this matter was given in the charter, and the New York company exercised the power under the general law, which, in this particular, is believed to be the same as our own. In the case in Pickering, to which we have referred, the court, in reference to the objection that the assignors of the stock were indebted to the company, and that therefore the company was not obliged to admit a transfer of their shares until their debt was paid, say: “ We do not know on what ground that argument can rest, better than that which is suggested, that the assent of the president is to be required to prevent transfers which are injurious to the corporation, and that a power of assenting implies a power of refusing. No authority is cited in support of that position. In Bates v. New York Ins. Co., (3 John. Cas. 238,) a similar claim was rejected. The company refused, unless the assignee would pay the debts due from the assignor, and the assignee, who paid under those circumstances, was permitted to recover back the money, on the ground that the corporation had no right to require such payment.” In another part of the opinion, the court say : “ A bylaw which limits the transfer of the stock to be made only at the office personally, or by attorney, and with the assent of the president, would be in restraint of trade, and contrary to the general law of the commonwealth, which permits the right to personal property and incorporeal hereditaments to be transferred in various other ways. The purchaser or other person entitled should make his right known to the corporation, that it may be entered upon their books, to the end that they may have proper evidence to whom the dividends or profits should be paid.”

Upon a sale of stock under our execution laws, (R. C. 1845, tit. " Execution,” secs. 14 and 48,) it is the duty o£ the officer to give notice to the company of the sale, and it is then as complete against the company as if clothed with the required formality prescribed by the by-laws.

3. The other matter which seems to have been considered in the Circuit Oourt^ whether the, assignment was sufficient to effect a change of ownership without taking out a new certificate in the name of the assignee, is settled by what has been already said. By the very words of the charter, the stock is " transferable on the books of the company,” and even if the words are to be construed as excluding all other modes of effecting a complete transfer, the mode prescribed by the act must be sufficient, without any additional formality, and there was proof to go to the jury of such a transfer. But we do not wish to be understood as putting the case upon this narrow ground. An assignment in writing is sufficient between the parties ; and if it be notified to the company, and they will not allow it to be made according to their by-laws, it is as valid against them as if the required formalities had been observed, the courts acting on the principle, as between these parties, of considering that done which ought to have been done, and settling the rights of the parties accordingly.

We remark, in conclusion, that a stockholder cannot, by selling out against the company’s consent, escape from his responsibility to the company for the unpaid purchase money of stock taken; nor can a member of a company, by a fraudulent conveyance, avoid his statute liability to the corporate creditors for debts contracted during his real ownership. These are matters not involved in this record, and left untouched by this opinion. ■

The result is, the Circuit Court misdirected the jury as to the law applicable to the case, and the judgment must be reversed, and the cause remanded for a new trial; and the other judges concurring, it is ordered accordingly.


author: Scott, Judge,

text:
    Martn's Executors, Appellants, vs. Miller, Respondent.
    1. in an action on the case begun before the new practice act, to recover damages caused by the act of the defendant in putting out upon his land fire, which extended to the land of the plaintiff, and burned his fence, the declaration alleged that the defendant wrongfully and negligently did the act on a specified day of the month, without naming the day of the week. At the trial, the plaintiff sought to recover on the sole ground that the fire was put out on Sunday, which fell upon the day of the month named in the declaration, and so the act of the defendant was unlawful, and he responsible for all its consequences. Held, under the declaration, this ground of recovery could not be made available, if at all.

      •Appeal from Andrew Circuit Court.

    This was an action on the case commenced in 184T. The declaration contained two counts. The first count alleged that, on the 28th day of March, 1847, the defendant “wrongfully and unjustly” set fire to prairie grass on or near his land, and that the fire extended to the land of the plaintiff and burned his fence. The second count was substantially the same, except that it charged that the defendant “ wrongfully, negligently and unjustly” set out the fire. The facts in proof appear in the opinion of the court when the cause was formely here. (16 Mo. Rep. 508.) It was in evidence that the defendant set out the fire on Sunday, the 28th of March, 1847. Among other instructions, upon which no question is here made, the jury were directed that it was immaterial to the issues whether the fire was set out on Sunday or not.

      Gardenhire, for appellant.
    1. It was matter of judicial notice that the 28th of March, 1847, was Sunday, and it was not necessary to expressly charge it in the declaration. (1 Chitty’s Plead. 249.) But if it was necessary, there was no demurrer to the first count. 2. It is well settled that, if a party be engaged in an unlawful act, he is responsible to all persons for injuries resulting from it, without any fault of their’s. (1 Chitty’s Plead. 145, 148. 2 Pick. 623. 1 Cowen, 78. 6 Cowen, 191.)

      Hall and Hories, for respondent.
    1. Under a declaration for negligently setting out the fire, the plaintiff could.not recover for the unlawful setting out fire on Sunday. (1 Chitt. Plead. 267, 244, 409. 9 Barb. S. 0. Rep. 158. 18 Mo. Rep. 408. 3 Watts, 255. 1 Stark. Ev.'372, 874.) It was not a material averment /that the day upon which the fire was set out was March 28th. Proof of any other day would have enabled the plaintiff to recover. 2. It does not follow that because it is unlawful to labor on Sunday, the plaintiff can recover damages in a civil action for a violation of the statute.
   Scott, Judge,

delivered the opinion of the court.

This case was formerly here, and is reported in the 1,6 Mo. Rep. 508. The only question now presented for our determination is, whether, if the defendant fired his land on'Sunday, he was not a wrong doer, and liable for all damages resulting from his illegal act.

It will he borne in mind that the declaration is at common law, (this action having been commenced in October, 1847,) and for damages resulting from the act of firing the defendant’s land, from which the fire escaped and burned the rails and fence of the plaintiff. The act is^ alleged to have been done on the 28th day of March, 1847, which was Sunday.

1. It was argued for the appellant, that the almanac is a part of the law of the land, and that the court will consequently take notice that the 28th day of March, 1847, was Sunday, and being such day, the act of firing his land by the defendant was illegal, and he is liable for all damages flowing from it.

One test by which the materiality of the averment that the kindling the fire was on the 28th of March, 1847, may be ascertained, is to suppose a plea filed to the declaration denying that the fire was kindled on that day. Such a plea would be obviously bad, as it would contain a negative pregnant. The action brought is for negligently keeping fire set out on his land by the defendant. Under this declaration, the plaintiff cannot try whether the defendant did unlawfully set fire to his land on Sunday, and thereby injure the plaintiff. Had the action been fpr illegally kindling the fire on Sunday, the. declaration should have been framed under the section of the statute prohibiting labor on that day, and have negatived the exceptions therein contained. The declaration in this case is clearly bad as a declaration under that section of the staute.

It will not be necessary to cite authority to show that, under a declaration for one cause of action, another and a different cause of action cannot be tried.

Judge Ryland concurring,

the judgment will be affirmed.


text:
    The State, Appellant, vs. Rich & Rich, Respondents.
    1. A law cannot be judicially declared unconstitutional, in a public prosecution, upon the admission by a circuit attorney of a fact upon which its unconstitutionality depends.
    2. The constitutionality of a law establishing a new county cannot be inquired into upon a motion to quash an indictment found in a court of such county.

      Appeal from Lawrence Circuit Court.

    John W. and John Rich were indicted in the Circuit Court of Stone county, at the June term, 1853, for an assault. Upon their motion, the cause was subsequently removed by change of venue to the Circuit Court of Lawrence county. They there moved to quash the indictment, assigning as a reason that the law establishing the county of Stone was unconstitutional, because its effect was, to reduce the population of Taney county below the legal ratio of representation. At the hearing, the circuit attorney admitted that such was the effect of the law, and thereupon, the court sustained the motion and quashed the indictment. The circuit attorney, on behalf of the state, appealed to this court. The cause was submitted without oral argument.
    Gardenhire, (attorney general,) for the State.
    ''The case of The State v. Scott, 17 Mo. Rep. 531,) and The State v. Oates, to be decided at tbe present term, will decide this case.
    There was no brief for the respondents.
   Leonard, Judge,

delivered the opinion of the court.

This judgment must be reversed, and the cause remanded, to be proceeded in to a final trial and determination.

The ground of the motion to quash the indictment was, that the act of the general assembly establishing the county of Stone, (Sess. Acts, 1851, p. 186,) where the indictment was found, was unconstitutional, because the establishment of this county had the effect of reducing the old county, (Taney,) from which it was taken, below the ratio of representation then required ; that, therefore, Stone county was not constitutionally established, and that, of course, there was, in point of law, no such court constituted as the Stone Circuit Court, where an indictment could be lawfully found ; or, in other words, that there was no case lawfully in the Lawrence Circuit Court, which that court could proceed to try and determine. The circuit attorney admitted the alleged fact, and upon this admission, the court decided that the act of the general assembly referred to was contrary to the state constitution, and that, consequently, the Stone Circuit Court not being lawfully constituted, the indictment was a nullity, and must be quashed.

1.- The invalidity of this act does not, as is usually the case, appear upon the face of the statute ; it is impossible, therefore, to determine, from a comparison of the act with the constitution, that there is any conflict between them.

The old statute of this state, establishing loan offices, was declared to be a violation of the federal constitution, because it appeared upon the face of it that the paper certificates which it authorized to be issued were “bills of credit,” within the meaning of that instrument; but here, the alleged nullity depends upon an extraneous fact, that may or may not be true, that the erection of the new county left the old county with a population less than the existing ratio of representation required. A knowledge of tbe law is imputed to tbe courts of justice, and so nul tiel record cannot be pleaded to a public statute. (6 Bac. Abr. Stat., p. 394.) But tbe appeal is to tbe judges, wbo are supposed to know tbe law, and if tbe courts are to pass upon tbe validity of a legislative act, impeached on tbe ground that wbat it directs to be done produces an effect not allowed by tbe constitution,' they must, of necessity, determine for themselves, in some way, tbe existence or non-existence of this fact. How they are to ascertain it, we need not stop here to inquire. It was tbe duty of tbe legislature to determine the matter for themselves, before passing tbe act, and a proper respect for a co-ordinate branch of tbe government requires us to presume that they did make tbe inquiry, and found that no ■ such consequence would result; and this presumption must stand at least until our consciences are satisfied, in some proper manner, that tbe fact was otherwise. In this case, there was no inquiry by tbe court into tbe fact suggested by tbe defendant; but upon tbe mere admission of tbe circuit attorney, tbe presumption in favor of tbe validity of a legislative act is repelled — the non-existence of tbe requisite population taken as true, and a public prosecution for a high offence, a matter in which tbe whole state was interested, suppressed, and tbe alleged criminal left to go unpunished. This cannot be. Although we, of course, impute no intentional error to the public officer who conducted tbe prosecution, it is manifest that it was not proper for him to make such an admission ; nor indeed, was it proper for tbe court to allow it to be done, or to allow it, when made, to satisfy its conscience of the fact, so as to justify it in refusing to proceed in tbe trial of tbe cause.

2. This view of tbe'matter is sufficient to produce a reversal of the judgment; but as tbe point is in tbe case, we propose to go farther, and declare that this inquiry cannot be gone into col laterally, on tbe trial of this cause, with a view to treat tbe indictment as a nullity. Whether there is any method, under our existing laws, of instituting an inquiry into tbe validity of a legislative act alleged to be void upon tbe ground now suggested, we are not bere called upon to decide ; but however this may be, we think such a proceeding must be a direct proceeding for that purpose, so that the judgment of the court may operate, as it were, in rem, and have the direct effect of settling the question permanently, in such manner that it cannot afterwards be made the subject of judicial investigation. Any other course would, it seems to us, be impracticable, and if practicable, full of intolerable inconveniences, and against all reason. The law is intended for practical use, and we may pause a moment to observe the working of any other course of decision upon the business of men and the interests of the community. By the act establishing this county, a local government is erected over the district of country embraced within its limits, and the necessary judicial tribunals and other offices are provided to carry on the government of the state in that locality. Among the first acts necessary to put the law into operation, is the appointment of the proper officers by the governor. He is required to act — the law imposes the duty upon him — there is nothing appearing on the face of the act itself that conflicts with the constitution, and he has no authority to institute any inquiry into the matter which is alleged to constitute its invalidity. The judges, too, are directed to hold their courts, and transact the business that is brought before them; and they, too, like all others, must presume that the law is constitutional, until it is made to appear otherwise, and cannot themselves go into a judicial investigation of the question, without involving the absurdity of allowing a court so established to be a lawful tribunal for the purpose of adjudging itself to be a nullity. Civil suits and public prosecutions are instituted in these courts, and judgments' are rendered affecting the lives and persons and property of individuals, and, after the lapse of years, all these things, whenever questioned collaterally, are to be adjudged void — the evil could not be endured.

It would, indeed, be impracticable to act upon any such principle. If, whenever any act done under the authority of the law came in question collaterally, the constitutionality of the law could be contested, then the trial of the main issue must necessarily be delayed until the preliminary fact, upon which the validity of the contested legislative act depended, should be first tried and determined upon testimony,, which, being different in different cases, might involve the absurdity of deciding the law constitutional one day, and uncons titutional the next. But we .need not press these things farther ; the result is manifest; all such inquiries must be excluded whenever they come up collaterally, and the county, its courts and officers, must be treated as things existing in fact, the lawfulness of which cannot be questioned, unless in a direct proceeding for that purpose.

We do not mean to raise any doubt as to the correctness of the proposition of law in the case of the State ex rel. Douglass against Scott, decided at the January term, 1853, of this court, (17 Mo. Rep. 521,) that “the legislature cannot lawfully reduce an old county, by the establishment of new counties, below the.ratio of representation then required;” but only to say that the invalidity of the law cannot be drawn in question in the present proceeding, either upon the admission of the fact, or upon an inquiry into its truth.

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


text:
    The State, Respondent, vs. Upton, Appellant.
    1. A verdict will not, it seems, be set aside because the jury used intoxicating liquor in their retirement, unless it appears that it was supplied from an improper source, or affected the verdict.
    2. Jurors are the exclusive judges of the weight of testimony.
    3. Upon an indictment for murder, a verdict of “guilty in manner and form as charged in the indictment,” will not support a judgment. The degree must be specified, under the statute.

      Appeal from Ripley Circuit Court.

      J. W. Morrow, for appellant,
    among other points, relied upon the following: 1. The instruction given below that the jury were bound to take tbe testimony of a witness as true, unless impeached, is manifestly wrong. 2. The verdict is fatally defective, in not specifying the degree of the offence of which the defendant was found guilty. (R. C. 1845, p. 883-, art. T, sec. 1. 8 Mo. Rep. 495.) 8. The use of intoxicating liquor by the jury in their retirement avoids the verdict. (Brant v. Foioler,.1 Cowen, 562. The Peoples. Douglass, 4 Cowen, 23.)
    Qardenhire, (attorney general,) submitted the case for the State.
   Scott, Judge,

delivered the opinion of the court.

John Upton was, at the September term, 1853, of the Circuit Court of Ripley county, indicted for murder in the first degree, and was subsequently tried and convicted.

There was a motion for a new trial and in arrest of judgment, both of which were overruled, and the cause was brought here by appeal.

One of the grounds for a new trial was, that the jury, in their retirement, used intoxicating liquors. Another ground was, the misdirection of the court in point of law, in giving the following instruction : “ That the testimony of a witness given upon the stand will be taken as true, unless such witness be impeached."

The motion in arrest was founded on the omission in the verdict to state the degree of murder of which the defendant was found guilty. The verdict was : “ We, the jury, find the defendant guilty in manner and form as charged in said indictment.”

1. In consequence of the want of conveniences for holding the sessions of the courts in many counties of the state, we have never lent a willing ear to objections against verdicts growing out of irregularities in the conduct of jurors, unless such irregularities affected the verdict, or were induced by means employed by the party obtaining it. Whilst the conduct of jurors cannot be too narrowly watched by the courts, yet, if they do misbehave, if it cannot be seen that such misbehavior affected the verdict, it has been thought best, under all the circumstances, to leave such misbehavior to the reprehension of the courts and the punishment imposed by law for it, without disturbing the verdict. No court would be warranted in receiving a verdict against a prisoner from a jury, any member of which was in the least under the influence of intoxicating liquors. But to hold that a verdict should be set aside for the use of ardent spirits by the jury, not carried to an excess, when such spirits are not supplied from a source interested, or calculated to bias the minds of the jurors, would be establishing a rule which would result in no practical good, and prove very burdensome to the parties. The setting aside of their verdicts is no punishment to jurors. They scarcely regard it as a reprimand, and to destroy their verdicts, for a cause which does not appear to have affected them, would be visiting the innocent with the consequence of the misdeeds of others. The use of intoxicating drinks by jurors, whilst in the discharge of their duties, should be discountenanced, and they should be taught that such conduct will not escape reprehension ; but the propriety of setting aside their verdicts for such cause is by no means apparent.

2. The instruction given by the court is erroneous. Courts always err, when they attempt to lay down rules by which a jury should be governed in estimating the weight to be given to the evidence of witnesses examined before them. That is a matter to be determined exclusively by themselves. They hear the witness and see his deportment, and from these circumstances, they determine, for themselves and by themselves, the confidence they will repose in his testimony. Where courts are permitted to sum up or comment upon the evidence, it is usual to express an opinion as to the weight to be given to the testimony of a witness ; but as that is not allowed here, in criminal proceedings, (R. C. 1845, p. 882,) the court should not attempt, by an instruction, to determine for a jury the weight to be given to the evidence. They should only direct the jury that, viewing all the testimony before them, and the conduct of the witnesses, they are the sole judges of the credibility of all those who testify before them.

3. The case of the State v. McGee, (8 Mo. Rep. 495,) is in point as to the defect of the verdict in not stating the degree of the offence of which the prisoner was found guilty, and shows that such defect is fatal. The statute is imperative (R. C. 1845, art. T, sec. 1, of the act respecting proceedings in criminal cases,) that, upon the trial of any indictment for any offence, where, by law, there may be conviction of different degrees of such offence, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offence they find the defendant guilty. There may be murder in the second degree, and under an indictment for murder in the first degree, a party may be convicted for murder in the second degree. Then, as the appellant was indicted for murder in the first degree, and as the jury has failed to find in what degreee he is guilty, under an indictment on which lie could be convicted either of murder in the first or second degree, their verdict does not enable the court to pronounce the sentence of the law upon it, and, therefore, it is erroneous. (R. C. 1845, art. 2, sec. 2, tit. “ Act concerning Crimes and their Punishments,” and art. 9, sec. 14, same act.) The other judges concur in reversing the judgment, and remanding the cause.


author: Ryland, Judge,

text:
    The State, Respondent, vs. Gates, Appellant.
    1. A second change of venue may be granted where the judge has been counsel in the cause, notwithstanding the twenty-eighth section of article five of the act concerning practice and proceedings in criminal cases. (B. C. 1845.)
    2. A party objecting to the admission of a record in evidence must specify his objections.
    3. One witness swearing that he saw two men on horseback meet in a road, and that they wheeled as they passed and had an angry conversation, and another witness, who also saw them meet, swearing that he did not see them wheel, an instruction to the jury that affirmative must prevail over negative . testimony was held inapplicable and erroneous.

      Jippeal from Camden Circuit Court.

    Gates was indicted at the October term term, 1848, of the Morgan Circuit Court, for attempting to deter a witness from giving evidence upon an indictment against him for perjury. At the April term, 1849, on account of the alleged prejudice of the judge, a change of venue was awarded to the Renton Circuit Court. A trial was had and the defendant convicted. He appealed to the Supreme Court and the case was reversed and remanded. In 1851, the cause was sent to Camden county by order of the court, because the then judge of the Benton Circuit Court had been prosecuting attorney in the cause. At the April term, 1852, the appellant took a continuance, and entered into recognizance for his appearance at the next term. At the October term, 1852, he filed a motion to strike the case from the doeket and remand it to the-Benton Circuit Court, because the court had no jurisdiction, a change of venue having once before been granted. The motion was overruled and the appellant excepted. He was then tried and convicted, and appealed to this court. At the trial, the defendant objected to the record of the Moniteau Circuit Court in the case in which he was alleged to have attempted to deter a witness from testifying, and to the record of the Benton Circuit Court in this case, but the record does not show that he specified his objections. His objection was overruled, and the records were read in evidence. .
    Among others, the court below gave the instruction, which, together with the testimony applicable to it, is set out in the opinion of Judge Ryland.

      Wright and Parsons, for appellant.
    1. The court erred in overruling the motion to strike the cause from the docket and remand the same to the Benton Circuit Court, one change of venue having previously been taken. (R. C. 1845, p. 876, sec. 28.) 2. The court erred in permitting the transcript of the record from Benton Circuit Court to be read in evidence. It was improper to tell the jury by the record what former juries bad done. B. The court erred in giving the second instruction. It was the peculiar province of the jury to determine what weight they would give the testimony of any particular witnesss. (R. C. 1845, p. 882, sec. 28.)

      Gardenhire, (attorney general,) for the State.
    1. Objection to the jurisdiction of the court cannot be taken advantage of by motion. It must be pleaded, and the plea must show what court has authority to try the cause. It is a dilatory plea and must be sworn to. (1 Ohitt. Or. Law, 4B8. R. 0. 1845, p. 872, sec. 6. 4 Black. 270.) 2. All other circumstances being equal, affirmative must prevail over negative testimony. (Phill. onEv. Cow. & Hill’s notes, part 1, p. 421.)
   Ryland, Judge,

delivered the opinion of the court.

The questions for our consideration arise upon the rulings of the court below, 1, in refusing to sustain the defendant’s motion to strike the cause from the docket, and remand the same to the Benton Circuit Court; 2, in permitting the circuit attorney to read in evidence the transcript of the record from the Benton Circuit Court; 3, in giving the second instruction for the State, which instruction will be inserted in this opinion hereafter.

The first question involves the authority of the Benton Circuit Court to change the venue in this case.

1. The defendant was indicted in the Morgan Circuit Court. The venue on his application was changed to the Benton Circuit Court. After this change took place, the judge, who was af-terwards elected to hold the Benton Circuit Court, having been the circuit attorney who prosecuted the defendant, Gates, on this charge, in the Morgan Circuit Court, ordered the case to be sent, by change of venue, to Camden Circuit Court, in a different judicial circuit. This order was made by the judge, of his own motion, he assigning therefor the reason, that he had been the counsel for the State in prosecuting this very defendant in Morgan Circuit Court.

“ No judge of tbe Circuit Court stall sit on the trial of any cause or proceeding in which he is interested, or related to either party, or shall have been of counsel; but it shall be the duty of the judge to try said cause or proceeding by the consent or request of both parties.” (R. C. 1845, act concerning courts, sec. 40, p. 335.)

A change of venue in criminal cases may be allowed ; but the last clause of the 28th section of article 5 of the statute concerning practice and proceedings in criminal cases, has the" following prohibition : ‘ ‘ And in no case shall a second removal of any cause be allowed.”

These clauses in our statutes conflict, and it is upon this conflict that the defendant below relied for the support of his motion. The Circuit Court, in our opinion, decided properly in overruling this motion. It was the safest and best course for that court to pursue. It would have been directly contrary to his duty, as a judge, to have set in the trial of this case : he had been counsel against the defendant, and its being a criminal prosecution makes no difference. The law will not place its judicial officers in a situation where malice or prejudice, or ill-will may have the means of making false imputations against them. A judge cannot sit in his own case — cannot sit on the trial of his own slave for crime, although the statute law may be silent ,as to the change of venue in such cases. (See the case of Jim, (a slave,) v. The State, 3 Mo. Rep. 147.) Public justice and the common sense of mankind cry aloud against the proposition of permitting the counsel who has prosecuted the prisoner, to change Ms character, put on the ermine of justice and then sit in judgment upon him. “It is both the policy and intention of our legislature to have tribunals for the determination of criminal cases above all sus - picion — courts upon whose disinterestedness not only the prisoner but the whole community can repose with entire confidence.” There is no error, then, in refusing to strike the case from the docket and send it back to Benton Circuit Court.

2. There is nothing in the second question respecting the admission of the transcripts of the records from Benton Circuit Court and from Morgan Circuit Court to be read in evidence. If these transcripts had been entirely irrelevant, or if there had been any other fatal objection to them, yet the court below did right to admit them, and to disregard any such general objection as was made in this case. It is not permitted to a party to say to such evidence, when offered, I object to it.” He must make his objections specific : he must point out the matters distinctly, and call the attention of the court directly to his objections ; otherwise the courts will not pay any attention or regard to such general and wholesale objections.

3. Upon the third question, that is, the second instruction given to the jury by the Circuit Court for the state, we think the court below erred. This instruction is as follows, viz: “ If witnesses of equal credibility swear — the one affirmatively and the other negatively — that is, if one swears affirmatively that he did see or hear a thing, and the other swears negatively that he did not see or hear it, the affirmative testimony must prevail.” This' instruction is not correct; it is not authorized by the facts in proof. The witness, Chism, speaks of his meeting the defendant, Gates, at a mud hole in the road ; that they passed each other so nearly that their knees touched ; that their horses wheeled round facing each other, and that much angry and threatening talk was had by defendant to witness — threatening to kill him, if he (witness) went to court and testified against defendant; that defendant put his hand in his saddlebags, and took out what the witness supposed to be-a pistol,* and that defendant frequently put his hand behind him, so as to make it seem he had a pistol or some weapon. Witness said that defendant repeated his threats several times ; witness also said that, after they separated, defendant spoke back to him in a loud and threatening manner; witness stated that there, was a boy, his step-son, about two or three hundred yards from them at the time he and Gates were together, and he supposed the 'boy heard what Gates said after he started off. This boy, Taitón Embry, the step-son of the witness, Chism, speaks of the time he saw Chism and Gates meet at the mud hole; it was the same time that Chism mentions. This witness says that they met and passed each other without making any stop : he never saw Gates have any pistol or weapon ; that Gates was coming towards witness and Chism going from him; that if Gates had drawn any weapon, he must have seen it; witness does not recollect of seeing Chism and Gates pass each other, at the place stated, but the one time; witness, Embry, says he was near the corner of Howard Chism’s pasture; he saw Chism and Gates pass each other near the corner ,of said pasture, about sixty yards east of it, in the road : the place where they met was near a mud hole ; he knew these men were unfriendly to each other; they passed each other without stopping ; he heard no conversation between them ; saw no effort or attempt on the part of Gates to draw a weapon, or make any attack on Chism. These witnesses directly contradict each other. The witness, Chism, says Gates and himself met; their horses wheeled round facing each other; they stopped, and Gates made threats, and repeated them several times ; drew a pistol or something like it, &c. Embry says he saw these men when they were some distance apart; they met about sixty yards from the corner of the pasture, east of it, near a mud hole; that he was near the corner of the pasture : he saw them meet and pass right on by each other, without stopping, &c. Here is no swearing affirmatively and negatively, but each witness swears to facts affirmatively. One swears that he and Gates stopped ; their horses wheeled round and faced each other; the other swears that they did not stop, but passed on by each other without stopping. The testimony of Embry is equally affirmative in its character, as the testimony of Chism. These witnesses cannot both be truthful; one must be wrong, and it is the peculiar province of the jury to believe the one and not the other. But the instruction virtually told the jury to believe Chism and disregard Embry. This is incorrect. The court should have informed the jury that it was their province to give credence to the one or the other, as they supposed most in accordance with the real facts of the case. If one witness swears he was in the city of Jefferson on the 8th day of January, 1854, and divers others swear that they were there too on the same day, but did not see the first witness ; here, the fact of the first witness being in Jefferson city on the 8th January, 1854, being positively and affirmatively sworn to, is not overthrown by the testimony of the others, who swear that they did not see the first witness there on that day. These witnesses may have all testified truly, and their statements are not irreconcilable ; but if a single witness had sworn that the first witness was at the city of 'St. Louis on that day; that he saw him there in the morning, at noon, and also in the evening, then the testimony of each is affirmative, and one or the other is not to be believed; but which one, it is for the jury to determine. The court below erred in giving this instruction ; its judgment is reversed, and the cause remanded;

Judge Scott concurring.


text:
    The State, Appellant, vs. Davidson, Respondent.
    1. A recognizance taken by a justice, conditioned that a party charged with crime shall-appear before the proper court at its next term, is not void for omitting to add “to answer the charge” or “to answer an indictment.”
    2. A recognizance cannot he quashed. Its validity can only be contested upon a scire facias after forfeiture.

      Appeal from Dent Circuit Court.

    Gardenhire, (attorney general,) for the State.
    No appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

From the record in this case, it appears that David Dotson was arrested and brought before a justice of the peace in Dent county, for an attempt to commit a rape upon the person of Elizabeth Wilhelms ; that the justice ordered said Dotson, after having inquired into the charge, to give bail for his appearance at the next term of the Circuit Court; that Dotson, with his sureties, entered into a recognizance to appear before the Circuit Court, on the first day of the next term thereof. The recognizance is set out in the record, and is subscribed by said Dotson, as principal, and Davidson, Speck and others as his sureties.

On the first day of the next succeeding term of the Circuit Court, to which day the party was recognized to appear, his sureties appeared and represented to the court that said David Dotson had failed and neglected to appear in pursuance of his recognizance, and had absented himself. They thereupon filed their motion to quash the said recognizance, alleging as reasons in support of their motion, 1, that it is not taken pursuant to the statute, in requiring defendant to appear and answer the charge ; 2, it was not certified as required by statute ; it was taken in a cause wherein one Elizabeth Wilhelms was the supposed injured party, when, in fact, no such person ever presented or filed a complaint against said defendant; 3, all the proceedings are illegal, irregular and void.

The court below sustained the motion to quash the recognizance, and the same was accordingly quashed, and the recog-nizors discharged.

To this action of the court, the circuit attorney objected and excepted, filed his bill of exceptions, and brings the case here.

1. After said Dotson and his sureties acknowledge themselves to owe and stand indebted to the state of Missouri, in the sum of three hundred dollars, to be paid, &c., the condition to the obligation is annexed, as follows : “ The condition of this obligation is such that, whereas, David Dotson, of the county of Dent, and state of Missouri, having been charged with an attempt to commit a rape upon the person of one Elizabeth Wil-helms, of Dent county, Mo., and upon said charge, said Dotson was arrested and brought before Jotham Clark, an acting justice of the peace of Dent county, and state of Missouri, on the first day of August, A. D. 1854 ; the justice, after hearing the testimony of:'the several witnesses, and taking into consideration the cause, it was thought right by said justice that he (Dotson) give bond for his appearance at the Circuit Court, in amount, three hundred dollars : Now, if the . said Dotson shall be and appear in his proper person, before the honorable judge of the Dent Circuit Court, at the court house, in the town of Salem, in said county of Dent, on the first Monday in September, A. D. 1854, and not depart without leave of said court, then this obligation to be void; otherwise to remain in full force,” &c.; it was signed by the said Dotson and his sureties, and a scroll, by way of seal, opposite each name.

This court cannot see why the Circuit Court considered this recognizance or obligation void. It is true it omits to say to answer the charge aforesaid,” or to answer to an indictment to be then and there preferred against him; but such omission does not render the recognizance void; it is sufficient and should not have been quashed, even if that was the proper mode to test its validity.

2. But we do by no means admit that such mode was the proper way to test the validity of the recognizance. The Circuit Court should not have permitted the sureties for Dotson in his absence to have made any such motion ; it was the duty of the court to have had Dotson called, and to have called his re-cognizors, and upon the neglect or failure of Dotson to appear and surrender himself in court, or upon the failure of his bail to produce him in court, .then the court should have had the recognizance declared forfeited, and a scire facias to issue thereon against the recognizors.

This practice of hearing motions to quash the recognizance, in the absence of the principal obligor, must lead at once to the subversion of all proper administration of the criminal law. The Circuit Court might take the forfeiture of the recognizance, and upon the bail producing the accused at the next term, that court might direct all further proceedings to be stopped against the bail, upon the forfeiture, as it is not money, but the punishment of the guilty that the law mainly requires in such cases. If, upon the scire facias, the question about the validity of the recognizance should occur, then the court must decide that question; but not upon a motion made by the bail in the absence of their principal. The recognizors would have but to hide their principal out for a short time, go to court and move to quash the recognizance for some slight and informal defect, get the recognizance quashed, and thereby put an end, so far as the state is concerned, to the whole matter.

This course is not to be permitted. The recognizors have power over their principal; they can take him any where, and they can deliver him up to the jailor of the county ; he is supposed to be in their hands instead of being “within the four walls of the prison.” Let them, then, know that they must produce him in court, or show cause, upon the scire facias, why the state should not have judgment against them on their recognizance.

The judgment of the court below, in this case, is reversed, and the case is remanded, that the order quashing the recognizance may be set aside ; the other judges concurring.