text:
    Hite et al., Defendants in Error, v. Hunton, Plaintiff in Error.
    1. A defendant after appearance cannot take advantage of a variance between the petition and the summons in the names of the plaintiffs.
    2. The insertion of an “ between the Christian and sir-name of a plaintiff in the caption of a petition, may be summarily amended.

      Error to Benton Circuit Court.

    Tbe case is stated in tbe opinion of Judge Ryland.

      F. P. Wright, for plaintiff in error.

      Gardenhire, for defendants in error.
   Ryland, Judge,

delivered tbe opinion of tbe court.

The plaintiffs filed their petition against the defendant in the Benton Circuit Court. The petition is in the name of Ormsby Hite and Abraham Hite, merchants, trading under the name and style of “ Ormsby Hite & Co.,” plaintiffs, against Felix Hunton, defendant. The plaintiffs state that said defendant, by his promissory note hereto annexed, dated the eighteenth of October, eighteen hundred and forty-three, promised, for value received, to pay the said plaintiffs, by their copartnership name of Ormsby Hite & Co., one day after date, the sum of two hundred and twenty-one dollars, which, and the interest thereon, are yet due, and for which the plaintiffs ask judgment.” The summons issued, requiring the defendant “ to answer the complaint of Ormsby & Hite and Abraham Hite, plaintiffs.” At the return term of the writ, the parties appeared, and time was given to defendant to file his answer at any time within sixty days from the end of the term. Within the time allowed, the defendant filed the following answer.

“ Ormsby & Hite and Abraham Hite vs. Felix Hunton. This defendant, Felix Hunton, here says that he never executed or made any note whatever payable to Ormsby & Hite and Abraham Hite, as stated in the plaintiffs’ petition, and he does not owe any such note ,or .any part of any such note; that he never made or executed to the plaintiffs, Ormsby and Hite and Abraham Hite, partners, by the name of “ Ormsby k Hite,” any such note as is described in the plaintiffs’ petition.”

At the same time, he also filed his motion to quash the writ, 1, because there is no summons in favor of Hite & Co. ; 2, because the summons is in favor of Ormsby and Hite and Abraham Hite, and the note filed in the case shows no indebtedness or contract with such parties : 3, because the note filed herewith shows no indebtedness from defendant to said Ormsby and Hite and Abraham Hite ; 4, because the summons and petition do not correspond as to the names of plaintiffs and defendant. At the next term of the court following, the defendant asked leave to file an amended answer, which was granted, and which answer is as follows :

“ Ormsby & Hite & Abraham Hite, merchants, trading under the name and style of Ormsby Hite k Co., plaintiffs, against Eelix Hunton, defendant. In the Benton Circuit Court.” The defendant, Felix Hunton, for answer to said petition, states that he never executed or made any such note whatever payable to Ormsby k Hite k Abraham Hite as stated in plaintiffs’ petition, and he says he does not owe any such note, or any part of any. such note ; and defendant further says, that he never made or executed to plaintiffs, Ormsby k Hite k Abraham Hite, by their ■ copartnership name of Ormsby, Hite k Co., any such note as-described in plaintiffs’ petition ; and defendant denies that, by.,’ his promissory note, dated the eighteenth day of October, eighteen hundred and forty-three, he promised to pay the saidii Ormsby k Hite k Abraham Hite, by their copartnership name-of Ormsby, Hite & Co., the said sum of two hundred and twenty-one dollars, or any part thereof ; and he denies that the same, or any part thereof, is still due said plaintiffs, Ormsby & Hite k Abraham Hite, as set forth, stated and described .in. plaintiffs’ petition.”

The plaintiffs moved to strike out the answer, because the answer does not respond to the petition of the plaintiffs ; because it is wholly irrelevant in this, that the suit is brought by,-Ormsby Hite and Abraham Hite, and. the answer responds to the action as if it were brought by Ormsby & Hite and Abraham Hite, and the said answer contains no defence.

The court sustained the plaintiffs’ motion and struck out the defendant’s answer, and then ordered that the suit be stated as follows : “ Ormsby Hite & Abraham Hite, plaintiffs, against' Felix Hunton, defendant” — who appear to be the real parties. In the caption of the original petition, there seems to have been something between “Ormsby” and “Hite” which might have been taken for a part of the “II” or an “

The defendant, failing to file any other answer, judgment was rendered against the defendant. The defendant filed his motion to arrest the judgment, which motion was overruled. The defendant then filed his bill of exceptions to the various rulings of the court.

I have thus spread the various acts of the parties and the court in full in this opinion, and upon looking into them, find nothing requiring the interference of this court. The petition, either originally or as amended, is for the proper parties and in the name of the proper plaintiffs, viz : Ormsby Hite & Abraham Hite. The mistake of the clerk in the summons gave rise to all the various motions of the defendant. The variance between the summons and petition cannot be taken advantage of now as formerly by the rules of the common law. The petition is the commencement with us, and the object of the summons is to bring the defendant before the court; when there, he must answer the petition and not the summons. The petition and note annexed inform the defendant of the cause of action ; he knew the plaintiffs ; the face of the note showed him who were the persons sueing in the petition, and the petition ■itself shows this. At the return term, the defendant gets leave to answer, and he files what he calls his answer and his motion to dismiss too. It is too late to move to dismiss after answer-ving, and an answer and a motion to dismiss at the same time being filed, the answer is a virtual waiver of the motion to dismiss. “A misnomer of the plaintiff could only be pleaded in abatement, and was no ground for setting aside the proceedings, or for a motion in arrest of judgment, or of non-suit at the trial; at least, if it appeared that the defendant was aware that the action was brought by the person who actually sues.” (1 Chitty’s Pleading, 282. Dunbar v. Craig et al., 2 Wheaton’s Rep. 45.) Such was the practice at common law. But here the only matter relied on to dismiss the suit is the variance between the petition and the summons. This court held, in Jones v. Cox et al. (7 Mo. Rep. 173,) that a variance between the declaration and the writ cannot be taken advantage of on a motion to quash ; also held that, where the summons varies from the declaration, the court may permit the summons to be amended, and such act is no ground for a continuance. Judge Scott, in this case of Jones v. Cox, says : “ If a variance be-teen the declaration and writ can be taken advantage of at all, it is not seen on what principle a party can avail himself of it by motion to quash. According to our practice, the declaration is filed before the writ issues, and the declaration being the foundation of the writ and accompanying it, the party would look to it in order to ascertain the nature of the demand against him and by whom it was instituted; a variance between it and the summons cannot mislead him and now it may be taken as the decision of this court, that no such variance can be taken advantage of. I repeat that the object of the writ is to bring the party into court, and when there, he must answer the petition or demur to it. He has nothing to do with the writ. The court below has ample power to make amendments in its proceedings. Petitions may be amended whenever justice will be promoted thereby. ■ Here the court ordered the case to be properly stated, and the defendant’s answer not being responsive to the petition, but rather an evasive effort at special pleading, and being what might almost be said to be a negative pregnant — almost a confession that the note was given and debt due to Ormsby Hite & Co., that is, to Ormsby Hite & Abraham Hite, and the defendant failing to file a proper or directly responsive answer, the judgment below was properly rendered against the defendant, and will, therefore, be affirmed ;

Judge Scott concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Wooton & Wooton, Respondents, vs. Hinkle, Appellant.
    1. Partition sale set aside, where it appeared that the bidders, for the purpose of obtaining the property at a sacrifice, agreed that one should become the purchaser, and the others refrain from bidding, in consideration of sharing the benefits of the purchase.

      Appeal from Lafayette Circuit Court.

    This was a proceeding to set aside a partition sale of certain real estate, of which Hinkle became the purchaser. The cause was submitted to the court without a jury, and the following facts were found:
    Before the sale, Samuel B. Shannon, John S. Shannon and Captain Trigg agreed among themselves to purchase the land at the sale, provided it did not sell for more than twelve dollars per acre, and authorized S. B. Shannon to attend the sale, and bid that price for the land. In pursuance of' this agreement, S. B. Shannon attended the sale, and when the land was put up by the sheriff, bid the first time three dollars per acre. There were between thirty and fifty persons present at the sale. Hinkle was not present at first, but afterwards came up, and after making some inquiries, commenced bidding for the land. Several bids were made by Hinkle and S. B. Shannon respectively. Shannon having made the last bid, Hinkle took him aside, and it was then agreed between them that Hinkle should bid off the land, and the same should be equally divided between them. They then returned to the place of sale ; Hinkle made a bid over Shannon’s last bid, and Shannon, in pursuance of the agreement, refrained from bidding any more. The land was knocked off to Hinkle at six dollars and fifty cents an acre, or about one half its value. There were no other bidders present at tbe sale. The court further found that the agreement between Hinkle and Shannon was made for the purpose of preventing competition between them. Upon these facts, the court declared the law to be that the agreement between Hinkle and Shannon was a fraud upon the owners, and accordingly set aside the sale.
    Hinkle, the purchaser, filed a motion for a review of the facts and law, which was overruled, and he appealed to this court.

      Hayden, JYapton and Morrow, for appellant,
    cited Phip-pen v. Stickney, 8 Metcalf, 384. Small v. Jones, 1 Watts & Serg. 136. 2 Const. Rep. (S. C.) 821. 3 Gilmer, 529. 11 Paige, 431. 2 Kent’s Comm. (7th ed.) 700.

      J. R. Troxell, for respondents,
    cited 1 Story’s Eq. Juris, p. 310, §293 and authorities there cited. {Blight’’s Heirs v. Tobin, 7 Monroe, 612. Mills v. Rogers, 2 Littell’s (Ky.) Rep. 217.)
   Scott, Judge,

delivered the opinion of the court.

There was a motion made for a review of the facts found, but as, in our .opinion, the evidence warranted the finding of the court, we shall proceed to examine the questions of law arising upon the record as presented.

At one time, the law in England seemed to be settled that the employment of puffers at auctions was illegal. (Bexwell v. Christie, Cowp. 395.) Afterwards, acts of parliament imposing a duty on sales of estates at auction, created a different opinion, and seem to have sanctioned the practice. (Sug. on Tend. 24. 1 Eonb. 178.)

In America, where the subject has not been controlled by legislation, the opinion is generally entertained that it is against sound policy and fair dealing to employ a person to bid secretly for the owner against a bona fide bidder at a public auction. (2 Kent, 539.)

According to Cicero, a vendor ought not to appoint a puffer to raise the price, nor ought a purchaser to appoint a person to depreciate the value of an estate intended to be sold. And Huber lays it down that, if a vendor employs a puffer, he shall be compelled to sell the estate to the highest bona fide bidder, because it is against the faith of the agreement, by which'it is stipulated that the highest bidder shall be the buyer. (Sug. 23.)

Our laws would justly be chargeable with the censure of neglecting the interests of vendors, if, while they prohibited them from employing puffers at auctions of their estates, they suffered purchasers, by unjust combinations among themselves, to obtain their property at a sacrifice. But our law is not obnoxious to this censure. While, on the one hand, it protects purchasers from the influence of fictitious biddings and false appearances produced by the conduct of puffers; on the other, it equally protects the rights of the vendor, and will not permit purchasers, by illegal combinations and- arrangements among themselves, to obtain his estate at an under price.

Story, in his equity jurisprudence, states the law to be that agreements, whereby parties engage not to jbid against each other at a public auction, especially in cases where such auctions are required by law, are held void; for they are uncon-scientious and against public policy, and have a tendency injuriously to affect the character and value of sales at public auction, and to mislead private confidence. They operate virtually as a fraud upon the sale. (1 vol. sec.-293.)

The courts in New York maintain that the forbearance of bidding at a public auction is a consideration for a contract that ought not to be sanctioned in law; that the law, at judicial sales, is anxious to produce a fair competition among bidders, and, as combinations have the effect of preventing such competition, they are against the policy of the law and void. (Jones v. Caswell, 3 John, cases, 29. Dootin v. Ward, 6 Johns. Rep. 194.)

None of the cases cited by the appellants impugn this doctrine. The case of Loomis v. The National Fire Ins. Co., (11 Paige, 431,) decides that a real bidder, at a public sale, may either bid in person or by his agent duly authorized. The case of Phippen v. Stickney, (3 Met. 384,) was an action arising out of an agreement between two persons that one of them should purchase the land to be sold at auction and convey it to the other, the purchaser participating in some of the advantages. In this case, the court says, the extent to which the doctrine of invalidating such contracts can safely be carried, would rather seem to embrace within the rule all cases of fraudulent acts and all combinations having for their object to stifle fair competition at the biddings, with the design of becoming the purchasers at a price less than the fair value of the property. The case of Small v. Jones, (1 Watts & Serg. 128,) contains nothing contravening that just above cited; it maintains that a combination of interests to purchase property at a sheriff’s sale will be valid or not, according to the views with which it is made. If it is effected with the design to depress, the price, it will be void. But that there may be circumstances which will render a combination at a sale lawful, when it is entered into with no improper view. The case of Switzer v. Skiles, (3 Gilman, 529,) contains nothing inconsistent with the doctrine of the above cases. That was a sale of the public lands of the United States. A to.wn had previously been laid out upon the land, and the owners of lots deputed one of their number to bid for the tract on which their town had been built. Nothing more appears.

The case of Jenkins v. Hogg, (2 Con. S. Car. Rep. 821,) does not affect the question involved in this controversy. If it is cited for the purpose of showing that the employment of puffers at auctions is warranted by law, its authority would scarcely be recognized at this day. The facts in this case show that there was a combination to obtain the property sold at a sacrifice by those who purchased it. When arrangements are made to effect that object by the purchasers at a sale, the law deems them fraudulent. It is a fraud on the sale, to make a combination by which the property is acquired at a price below its value. The law imputes fraud to such conduct, and the court was warranted in inferring its existence from the facts found. It is of importance that these sales in partition should be preserved free from all influences, which may depreciate the value of the land sold. Such sales rarely take place-but where infants are interested, and they are too. frequently prompted by a desire to obtain their inheritance, and that, too, at a sacrifice. Under such circumstances, courts cannot be too vigilant in guarding every avenue to improper practices in conducting them.

Judge Ryland concurring,

the judgment will be affirmed.


author: Soott, Judge,

text:
    Neal et al., Plaintiffs in Error, vs. Stone et al., Defendants in Error.
    1-. A court cannot refuse to entertain a motion to set aside a partition sale because all interested do not join in the motion.
    2. A partition sale will be set aside, where the evidence shows any collusion or contrivance to enable the purchaser to obtain the land below its real value.

      Error to Cooper Circuit Court.

    This was a motion to set'aside a sheriff’s sale in partition-. The parties to the partition suit were the heirs of William Stone, deceased, only a portion of whom joined in this motion.
    At the hearing, it appeared that the land-sold consisted of parts of two adjoining quarter sections, comprising in all upwards of one hundred and eighty acres. It was admitted that the land was sold pursuant to the order of court to George W. Smith, on a credit of twelve months, for the price of six hundred dollars ; that the purchase money was still unpaid and no deed had been made. Notice of the sale was duly given in a newspaper, and no question was made of its sufficiency. It described the two tracts to be sold, but did not specify whether they were to be sold separately or in a body.
    The sheriff who made the sale testified that it was made pursuant to notice, at the usual hour, while the court was in session ; that only two of the heirs were present, viz: Joshua Lewis and Nathan Neal, who was the father-in-law of Smith, the purchaser: the land was sold in one body by direction of Neal and Lewis, and knocked down to Smith at his first bid, no other bid having been made ; no person expressed a desire to buy any lot or part of the land ; at the request of Lewis, he proclaimed before the sale that there was a good log house on the farm, an orchard and a spring.
    Amick testified that he lived near the land, and it was understood in the neighborhood that it was to be sold in lots j there were several persons in the neighborhood who wanted the land ; some wanted it in lots, others in a body ; witness attended the sale expecting it to be sold in lots, and if it had been thus sold, he would have bid five dollars an acre for one forty acre tract; a few minutes before the sale, he saw Smith and Neal talking privately together, and after this, the sheriff proclaimed for the first time that the land would be sold in one body ; Smith had said before the sale that the land would be sold in one body., and witness made no bid; the land was worth six to seven dollars an acre.
    Burke testified that he understood from the advertisement and from Nathan Neal that the land was -to be sold in lots, and therefore he did not attend the sale, as he wanted it in a body if he had known it was to be sold in a body, he would have attended and bid one thousand dollars.
    Starke testified that he attended the sale because he expected the land to be sold in lots ; saw the advertisement, and was told by Neal that it would be sold in lots ; would have bid six dollars an acre for eighty acres, but did not want the whole tract, and so did not bid at all; thinks the land would have brought considerably more if it had been sold in lots ; saw Neal and Smith talking privately together, and immediately afterwards it was announced that the land would be sold in a body; does not know what would have been given for other tracts, or whether any one was present who would have bid for them at all, if they had been put up in lots.
    This is the substance of all the evidence in the record. The motion to set aside the sale was overruled, and the movers bring the matter to this court by writ of error.

      Adams and Hayden, for plaintiffs in error.

      Gardenhire, for defendants in error.
   Soott, Judge,

delivered the opinion of the court.

1. The objection that all the parties injuriously affected by the acts of the sheriff in conducting the sale did not unite in the motion to set it aside, should have its weight in determining this question, but cannot prevail to the extent of preventing its consideration by the courts. As this is a summary proceeding by motion to set aside the sale, it may be regarded as a step in the original cause to which all proper parties were made. Courts are impressed with a sense of the policy of sustaining judicial sales, and are aware of the evil consequences which may result from invalidating them on slight grounds. But this policy must not be so rigidly adhered to, as to create the impression that bad faith or collusion will escape animadversion. When sales are fairly conducted by all those concerned in them, they will not on trivial grounds be disturbed.

The evidence shows that, by the management of those who reaped the advantage, the property in this instance was sold at a price considerably below its value. By the contrivance of the father-in-law of the purchaser, those who would have attended the sale were induced to absent themselves, and the property was afterwards sold in a manner to prevent those from bidding who did attend. The father-in-law being a party to the suit, and interested in the proceeds of the sale, his representations were calculated to influence those who desired to attend the auction.

In conducting a sale of this kind, the sheriff is the agent for all interested, and he should not be controlled by the directions of any one. He should exercise his own discretion, and, governing himself by circumstances, he should conduct the sale in such way as, in his judgment, will obtain the greatest price for the estate sold. Lumping sales are narrowly watched, and they will generally be discountenanced when complaints are made against them. Still, there are cases in which a whole tract of land, if all its parts are contiguous, would be best sold altogether, although it may consist of many congressional subdivisions. When the sheriff is disposed to discharge his duty impartially, it is an easy matter to ascertain what is best to be done. As it appears that the sheriff suffered himslf to be controlled by those who obtained the property at an under price, the sale should have been set aside.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


author: Soott, Judge.

text:
    Doan, Respondent, vs. Moss, Appellant.
    1. Action on a non-negotiable note by the assignee against the maker. Answer — that the maker being security for the payee, the latter deposited with him a chattel as a pledge for his indemnity, and thereupon, the note was given, merely as evidence of the deposit. Held, a good plea of want of consideration. ,

      Appeal from Jludrain Circuit Court.

    Action by Doan, the assignee, against Moss, the maker of the following note:
    “Due John S. Bishop three hundred dollars, for value received of him. September 2, 1853.
    “Thomas T. Moss.”
    The defendant answered, admitting the execution of the note, but alleging that it was executed under the following circumstances : Defendant being security for Bishop to a considerable amount, Bishop delivered to defendant, for his indemnity, a jack, of the value of one hundred dollars, or one hundred and twenty-five dollars, which was to be held by defendant until Bishop should in some way discharge him from all liability as surety, and was then to be returned. Bishop asked for some writing as evidence of the transaction, so that he might not lose the jack, in case defendant should die. Bishop then wrote or caused to be written the note sued upon, and defendant signed the same, with the understanding that it was never to be collected, iij whole or in part, and was to be returned to defendant whenever, being secured against all liability as surety, he returned the jack. The answer further alleged that the assignment was without consideration and fraudulent. This is the substance of every material allegation. This answer was stricken out by the Circuit Court, and judgment entered for the plaintiff.

      Jones & Rickets, for appellant.

      S. JL. Young, for respondent.
   Soott, Judge.

The facts stated in the defendant’s answer clearly showed that there was no consideration for the note sued on, and therefore the court erred in striking it out.

The nature of the defence of the maker of the note was not changed by the assignment, and the defendant is allowed to set up the defence he makes against the plaintiff (the assignee) in as ample manner as he could have made it against his assignor.

Judge Ryland concurring,

the judgment will be reversed and the cause remanded.


text:
    Morrow’s Assignees, Plaintiffs in Error, vs. Bright, Defendant in Error.
    1. In an action by the general assignees of an insolvent, to recover a debt due the assignor, the defendant was allowed to set up as an equitable defence or set-off the amount of a note paid by him after the assignment, as security of the assignor upon a note which was under protest at the date of the assignment.

      Error to Ray Circuit Court.

    This was an action by Morrow’s general assignees for the benefit of creditors against Bright, for about eight hundred dollars due upon a note, account stated and agreement, all of ■which were included in the assignment. Bright pleaded as a set- off five hundred dollars paid by him since the assignment, on a protested note of Morrow’s, on which he was endorser. The assignment was dated April 9, 1853. The note was given December 27, 1852, was protested before the assignment, and paid by Bright after the assignment. The offset was allowed by the Circuit Court, and the plaintiffs appealed.

      Napton, for plaintiffs in error.
    1. Morrow and Bright were not mutually indebted at the date of the assignment. There was nothing due by Morrow to Bright when the assignment was made, and if Morrow became indebted to Bright after the assignment, that is surely no set-off against the demand assigned. (13 Yermont, 440.) A debtor cannot, by his assignment, prevent a settlement of mutual subsisting indebtedness between himself and another; but he has a right to prefer some creditors to others, and to make such appropriations of his effects as he pleases. If the set-off claimed here be allowed, will it not place it in the power of the assignee’s debtor at all times, to defeat the intentions of the assignor, and disarrange the order of claims, by buying up the claim of a postponed creditor, and in that way, procuring its full allowance, when by the directions of the deed of assignment, it would only get a pro rata share with other claims of its class ? 2. There is no question of notice here, as the court below assumed the law to be that the set-off must be allowed, without regard to notice. 3. It cannot be pretended that the payment made on the protested note was an equitable defence or set-off against the plaintiffs, as it grew out of a transaction totally independent of the indebtedness assigned. (15 Mo. Rep. 399;)

      Gardenhire and Fories, for defendant in error.
    1. The interest of the plaintiffs in the insolvent’s debts is exactly that of the insolvent himself, as it stood affected by countervailing equities at the time of the assignment. It is therefore immaterial whether the liability set up as a defence was originally absolute or contingent, the relations of the parties being unalterable by the accidental insolvency of one of them. (Krause v. Beitel, 3 Rawle, 203. 1 Atk. 230. 2 Paige, 581. 1 Root’s Conn. Rep. 42T. 7 Mo. Rep. 524.) 2, It does not appear that the defendant had any notice of the assignment when he paid the note upon which he was endorser, and for that reason, if for no other, his demand is allowable as a strict set-off. (New Practice Act, art. 3, sec. 3.)
   Soott, Judge,

delivered the opinion of the court.

The only question in this case is, whether the defendant, Bright, is entitled to the benefit of the set-off which he claims, as against the plaintiffs ?

The plaintiffs are the voluntary assignees of the insolvent Morrow, and their position in this action cannot be likened to that of an assignee for value of the specific debt which is sought to be recovered.

In the case of Krause v. Beitel, (3 Rawle, 199,) it was held that the interest of a trustee of an insolvent debtor in debts due to the insolvent, is exactly that of the insolvent himself, as it stood affected by countervailing equities at the time of the assignment.

Our statute, in suits brought by administrators and executors, allow debts existing against their intestates or testators and belonging to the defendant at the time of their death, to be set-off in the same manner as if the action had been brought by or in the name of the deceased. On this view of the subject, there would be no impropriety in allowing the set-off.

But the matter may be presented in another light. Bright could not sue Morrqw to recover the money for which he was bound for him, until he had actually paid it. But this goes on a technical ground, peculiar to the action for money paid,, laid out and expended. Money cannot be said to be laid out for another until money is actually paid on his account. But, in substantial justice, as Bright was Morrow’s surety, and com-pellable by law to pay the debt, and as Morrow was insolvent, Bright may be regarded as the creditor of Morrow from the time the note was protested. Then, as there was an indebted-mess on the part of Morrow to Bright, and as the very act of assignment was evidence of insolvency, by which Bright became absolutely bound, there was an equity against the demand of Morrow at the time of the assignment, growing out of his indebtedness to Bright.

We do not .consider that this action is affected by the third article of the present practice act.

Jude Ryland concurring,

judgment affirmed.


text:
    Stubblefield, Defendant in Error, vs. Branson, Plaintiff in Error.
    1. The sale of an improvement on public land is a sufficient consideration to support a promise to pay for it, although the vendor does not actually reside upon the land at the time of sale.

      Error to Osage Circuit Court.

    This was an action commenced before a justice of the peace, to recover the value of an improvement on public land.
    At the trial in the Circuit Court on appeal, it appeared that the plaintiff never actually lived upon the land. The improvement consisted of a field inclosed by a fence. There was evidence tending to show that defendant promised to pay plaintiff for the improvement. The court instructed the jury to find for plaintiff if they believed there was such a promise, and that in consideration of it, the plaintiff relinquished possession of the improvement. An instruction that the plaintiff could not recover unless he was in actual possession when he sold to defendant was refused. There was a verdict for plaintiff, and the defendant brings the ease to this court by writ of error.

      E. L. Edwards, for plaintiff in error.
    The only interest which Stubblefield could have in the improvement was the possession, as he claimed no title to the land. If he did not have the actual possession, the contract would have been void for want of consideration* even if there had been an actual buying and selling, of which, however, there was no evidence. (4 Mo.Rep. 235. 6 Mo. Rep. 590.)
    Parsons, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

1. The only point presented for our determination is, whether the sale of an improvement on the public lands of the United States is a sufficient consideration to support an agreement to pay for it, unless the claimant of such improvement actually resides upon the land. We do not consider the case of Clark v. Shultz, (4 Mo. Rep.,) as furnishing any ground for the distinction between improvements, which may consist in part of dwellings occupied by the seller, and those on which there is no actual residence. A dwelling is spoken of in that ease simply because the fact was, there was one on the improvement. Actual residence makes no difference in principle. It may be that one who is actually residing upon public lands submits to a greater inconvenience, in yielding up his improvement, than he who merely abandons to another an improvement without a dwelling upon it. But this makes no difference. There is a sufficient consideration in each case for a promise. The transfer of the improvement is a prejudice to the seller and a benefit to the purchaser, and therefore a valid consideration. The relinquishment of any improvement upon the ■public land, whether it consists of dwellings or not, is a sufficient consideration to support a promise. In states in which the public lands are situated, it is maintained that the sale of a claim or improvement is a sufficient consideration to support a promise, and this, in the nature of things, cannot depend on the character of the improvements which may have been made. It is enough that they are worth any thing, and if so, their abandonment, at the request of another, is a sufficient consideration to support a promise by him. (Doyle v. Knapp, 3 Scam. 837. Freeman v. Holliday, 1 Mor. (Iowa) Rep. 80.)

This court does not interfere with verdicts on the ground that they are against-the weight of evidence.

Judge Ryland -concurring,

the judgment will be affirmed.


text:
    The State, to the use of Moutrey’s Adm’rs, Plaintiff in Error, vs. Muir & Ritter, Defendants in Error.
    1. In an action against the securities in a constable’s bond, for the failure of an acting deputy to pay over money collected under execution during the constable’s term of office, it is no defence that the principal had forfeited his office by removal from the state.

      2. The securities in a constable’s bond are liable for the delinquencies of a deputy acting with the consent of their principal, although the deputy’s appointment is not filed as required by law.

      Error to Jackson Circuit Court.

    This was an action against the securities in a constable» bond, for failure to return an'execution and pay over money collected under it. The bond was conditioned that Presley Muir should “ serve all process to him directed and delivered:,, pay over all moneys by him collected, and in all other respects well and truly do and perform,' all and singular, the duties that now are or may be enjoined upon him by law to do and perform as constable of Kaw township.”
    The cause was tried by the court without a jury, and the following facts found:
    Muir was in August, 1850, elected constable of Kaw township for the term of two years, and entered into bond, with the-defendants as sureties. During a portion of the year 1851, and up to August, 1852, Ross acted as the deputy of Muir, and was by Muir recognized as such, but no written appointment was filed in the office of the clerk of the county court, as required by law, nor did it appear that there was any written appointment. In April, 1852, the beneficiary plaintiffs recovered a judgment before a justice of the peace in Kaw township. On the 20th of April, 1852, execution upon said judg-meat, directed to the constable of Kaw township, returnable in sixty days, was issued and placed in the hands of Ross, the deputy. Ross collected the money under the execution, but failed to pay it over, or to return the execution. In July, 1851, Presley Muir removed with his family to Wyandott, in Nebraska territory, arid.had since continued to reside out of the state of Missouri.
    Upon these facts, the Circuit Court declared that the defendants were not liable. The plaintiffs moved for a review of the law and facts, but their motion was overruled, and they appealed to this court.

      Smart and Skeley, for plaintiff in error.
    1. It is sufficient to prove that sheriffs, constables and other peace officers acted as such to render them liable. {People v. Collins, 7 Johns. 549. Potter v. Luther, 3 Johns. 431. Hart v. Pobinett, 5 Mo. Rep. 11.. 9 Wend. 17. 3 Scammon, 483. 4 T. R. 366. 1 Pick. 273.)

      J. B. Hovey, for defendant in error.
    1. By the removal of Muir from the state, his office as constable became vacant, ..and the defendants were not liable for any subsequent acts of his deputy. (R. C. 1845, tit. Constables, secs. 1 and 10.) .2. Muir never had a deputy within the meaning of the law. (Same act, sec. 7.)
   Scott, Judge,

delivered the opinion of the court.

1. The plaintiff moved for a review of the finding of the eourt ¡below, but we do not deem it necessary to revise the action of the court in that matter; for taking the facts as found, the judgment for the defendants was not warranted by law.

If the principal in the bond would be liable for the act of the ■deputy, the rule is not perceived on which the sureties would be ■ discharged. The surety in an obligation is bound to the same • extent thereby as the principal. If this was a proceeding .against the constable for unlawfully exercising his office, or if -the constable was plaintiff, asserting his right to the office, very ■different considerations would arise from those which must determine tbis cause. There is no dispute but that the act complained of was done during the term for wbicb the principal was elected, and for which the securities were bound. The de-fence set up is, that the principal, by his acts, had deprived himself of his office. Not that he had resigned, and his resignation had been accepted, but by his improper conduct, in becoming a non-resident, he had forfeited or vacated his office. Would it not be a monstrous defence for an officer to make, when called upon for money which'he had collected by virtue of his office, to say that he had forfeited his office before the money was received, and therefore he had no right to receive it. When an officer is sued for malfeasance in office, it is enough to show that he is an officer de facto ; his not being so de jure also, is not an objection that can be made available to defeat or in any way affect the interests of third persons. (Cowen’s Notes, 555.) We have said that, if the law holds the officer liable, there is no principle on which his sureties can be discharged. If men will go sureties for others, they cannot complain if they are made responsible for their acts. There is no hardship in this ; the sureties might at any time, under the statute, have discharged themselves. The statute itself contemplates a ease in which six months’ absence from the state by the principal does not release the sureties. (R. C. 1845, tit. Securities, sec. 14.)

2. The provision in the statute requiring the appointment of a deputy constable to be filed in the office of the clerk of the county court, is merely directory. The principle in relation to officers de facto, when the rights of third persons are concerned, is applicable as well to deputies as their principals ; and, if the deputy acts with the consent of his principal, the principal will be bound for his conduct. Proof of a person’s acting as under sheriff, is sufficient proof of his authority to do any act necessary in the course of his office. (Berryman v. Wise, 4 T. R. 366.) There is no pretence here but that the deputy constable was appointed by the principal in whose name he- acted. If the plaintiff should lose her debt by reason of the omission to file the deputyfs appointment in the office of the clerk of the county court, such omission being a breach o£ the condition of the bond, these sureties, who would now take advantage of such neglect, would be liable on the bond for such failure.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


text:
    Taylor et al., Respondents, vs. Wilburn et al., Appellants.

      1. Where a will is impeached for undue influence exercised over the weak intellect of the testator, the inquiry is, not merely whether an undue influence was exerted at the time of the execution of the will, but whether an undue influence had been acquired, and op erated upon the testator in the disposition of his property.

      Appeal from Montgomery Circuit Court.

    This was a proceeding commenced in the Callaway Circuit Court to vacate the will of John Wilburn, previously admitted to probate in the county court, on the grounds of his alleged mental incapacity to make a will, and of undue influence exercised by his wife over his weak intellect. The petitioners were Ms daughters and their husbands, and Sinclair Wilburn, one of his sons. The statutory issue was made and tided by a'jury, who could not agree upon a verdict. Another trial was had, and resulted in a verdict against the validity of the will. A new trial being granted, a change of venue was taken to the Circuit Court of Montgomery county, where a trial was had at the October term, 1852, ■ which resulted in another verdict against the will.
    At the trial, the petitioners read in evidence the will, dated October 27, 1847, executed in due form, and attested by three subscribing witnesses. The testator devised all his real estate to his wife, during her life, and after her death, to John and Robert, his two youngest sons and their heirs forever, and all Ms personal estate to his wife absolutely.

      There was evidence tending to show that, for many years before Wilburn’s death, he was in a weak state of mind, incapable of properly managing his own affairs, and controlled by his wife in all his business transactions, and that he never made a bargain or trade without her advice and consent. There was evidence of declarations made by Mrs. Wilburn, before the death of her husband, that some of the petitioners should not get any of his property. There was evidence that Wilburn said, after the execution of his will, that he had given all his property to his wife during her' life, but that if he had had his own way, he would have given a slave to each of his daughters. Witnesses, who had observed the unusual influence exerted over Wilburn by his wife, gave it as their opinion that he was not capable of making his own will. On the other hand, there was evidence tending to show that Wilburn, though not a man of strong mind, was capable of managing his own affairs, and had accumulated a large property by his thrift as a farmer; that he made close bargains and was watchful of his own interests. Cave, one of the subscribing witnesses, testified that Wilburn came to him while attending court, and asked him to come to his house and write his will. It was written in the presence of Wilburn and his wife. Mrs. Wilburn did not direct or dictate how the will should be written. After it was written, it was read over, and Wilburn asked his wife if it was right, to which she replied that it was. Witness thought that Wilburn was in his right mind, and capable of making his own will.
    The court gave the following instructions asked by the petitioners :
    1. Unless the jury believe from the evidence that John Wilburn was of a sound mind, at the time he executed the instrument purporting to be his will, they will find the issue for plaintiffs.
    2. If the jury believe from the evidence that the mind of John Wilburn was so impaired by sickness, age, or any other cause, at the time of executing said instrument, as to subject him to the dominion and control of his wife, and that she exercised such a power and control over his mind, in the disposition of his property by said instrument, as to destroy his liberty and free agency, and cause it to be made to suit her purposes and not his, then they will find the issue for the plaintiffs.
    3. Although unsoundness of mind and undue influence are neither to be presumed in the absence of proof, yet each may be inferred and established by circumstances, such as the acts, words, condition, relation and circumstances of the parties, each to the other.
    11. If the jury believe from the evidence, that Mary Wilburn procured the making of the instrument in question by John Wilburn by threats or frequent importunities, which, on account of his weakness and infirmity of mind, he could not resist, and for the sake of peace, yielded to her wishes and made it different from what he had intended and would have done but from that influence, then they must find that it is not the will of John Wilburn.
    Other instructions asked on behalf of the plaintiffs were refused. All the instructions asked by the defendants were given. By the first, the jury were directed to establish the will, unless they believed the testator was of unsound mind when he executed it, or that he executed it through the undue influence of his wife.
    After a verdict against the will, the defendants appealed to this court.

      Thomas Ansell, for appellants,
    upon the whole case cited the following authorities : Stewart’s Ex’rs v. Lispinard, 26 Wend. 255. Rambler v. Try on, 7 Serg. & Raw. Kinne v. Kinne, 2 Conn. 102. 2 B. Monroe, 109. Jarman on Wills, 36-7-8-9, 50-1-2-3. 4 Wash. C. C. R. 262. 2 Starkie’s Ev. 1275, notes. 1 Iredell, 209. Brown v. Miller, 3 Wharton’s Rep. 2 Greenl. Ev. §688 note 5. 4 Greenl. Rep. 220-8. 1 Harrington, 451 et seg.

      Sheley, Jones & Jamison, for respondents,
    cited 1 Rich. Law Rep. 84. 1 Speer’s Rep. 101, 108. 1 Jarman on Wills, 86-40. 7 Serg. & Raw. 269. 9 Grattan, 833. 234, 237-8. fed X' tc"> 1 — J bO gp bO w fcO C-] O ' m xo iG> CO G
   Scott, Judge,

delivered the opinion of the court.

There is no doubt but that the burden of proof in this case was upon the petitioners or plaintiffs. They did not deny the execution of the will, but set up such weakness and infirmity of intellect, caused by sickness and age, as rendered the testator not of a sound and disposing, mind, and such an influence exercised over him as vitiated his will. But in making this admission, we cannot see any consequence resulting from it injurious to the plaintiffs by reason of the first instruction given at their instance by the court. That instruction directs the jury to find for the plaintiffs, unless they believe from the evidence that John Wilburn was of sound mind at the time of making his will. Now this instruction did not relieve the petitioners from the burden they had assumed of showing insanity in the testator. The instruction is to the effect that the insanity of the testator must be shown by the plaintiffs in order to obtain a verdict. To say that the act of a man is void, unless he was of sound mind when he performed it, is the same thing as to say the act of a man of -unsound mind was void. When the objection to the validity of a will is the insanity of the testator, it is generally sufficient to show that he was of a sane mind at the time of its execution. But where a will is impeached for undue influence exercised over a weak intellect, and that too, by one holding the close and constant relationship of a wife, it is not sufficient to show that the testator was not under restraint at the moment of the execution of the will. Such is the nature of the human mind, that when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present or exert it at the time an act is done. So that the inquiry, in such cases, is not whether an undue influence was exerted at the time of the execution of the will, but whether an influence bad been acquired, and did operate in the disposition of bis property by the testator.

After one mis-trial and two verdicts against the will, this court would scarcely be warranted in pronouncing that the facts assumed in the second and eleventh instructions of the plaintiffs, were not warranted by the evidence. The first instruction given for the defendants was broader than the first given for the plaintiffs, but, so far as they relate to the question of the sanity of the testator, there was no inconsistency between them. This is sufficiently' apparent from the considerations above stated. Nor is there any contrariety between the plaintiffs first, and third instructions.

As the evidence warranted the instructions given for the plaintiffs, and as all the instructions asked by the defendants were given, which fully explained the nature of the influence to be exerted, in order to invalidate a will, and as there have been one mis-trial and two verdicts against the will, we are satisfied that no advantage would ultimately result to the defendants from disturbing the judgment of the court below.

Judge Ryland concurring,

tbe judgment will be affirmed.


text:
    Hissrick, Appellant, vs. McPherson, Respondent.
    1. In this state, a plaintiff’s hook of original entries, kept by himself, is not admissible evidence in support of a demand for goods sold and delivered, with or without his suppletory oath.

      Hppeal from Cooper Circuit Court.

      P. JR. Hayden, for appellant.
    Tbe plaintiff should have been permitted to read bis account book in evidence. (2 Phill. on Ev. p. 682-3, 691. Oowen & Hill’s note, 491. Beach v. Mills, 5 Conn. Rep. 496-7. 1 Greenl. Ev. §117, 118, note 1. 1 Smith’s Lead. Cases, top p. 304 and notes. Ingraham. v. Bockins, 9 Serg. & R. 285. Curran v. Crawford, 4 S. & R. 8. 12 Pick. 139. 18 Mass. 427. 1 Rawle, 441.

      «/?. Leonard, for respondent.
    A party’s own original account book of sales, with or without the suppletory oath, is inadmissible in evidence. In the English courts, this evidence is never allowed. (3 Barn. & Aid. 142. Sickles v. Mather, 20 Wend. 72. Price v. Torrington, 1 Salk. 285. 11 Mees. & Weis. 773. Pittman v. Maddox, 2 Salk. 690. Case v. Potter, 8 J. R. 211. Beach v. Mills, 5 Conn. Rep. 696. Sterrett v. Bull, 1 Binn. 237. Poidtney v. Boss, 1 Dali. 238.) In the United States, there is great variety of opinion on this subject. (1 Smith’s Lead. Oases, 294-315, where the cases are collected. Cowen & Hill’s notes, part 1, p. 682, 701, note A. 2 Wheat. Rep. 117, 118. 1 Greenl. Ev. §118, 119 and notes. Eastman v. Moulton, 3 New Hamp. 156. Beach v. Mills, 5 Conn. Rep. 696. Vosburgh v. Thayer, 12 J. R. 462. Decamp, v. Vandagrass, 4 Blackf. 272. West v. Poinder, Walk. 303.)
    In this state, the question has never been settled, but the practice at the circuits, it is believed, has always been against the evidence ; and it is submitted that the old law is safer and better than the new, and that such is the experience of some of the states where the innovation has been allowed. (Per Cowen, Judge, in Sickles v. Mather, 20 Wend. 72. Sedgwick, Justice, in Cogswell v. Dollwer, 2 Mass. 222. Platt, Justice, in Vosburgh v. Thayer, 12 J. R. 462.)
   Scott, Judge,

delivered the opinion of the court.

This was an action begun by the appellant against the respondent, on an account for butcher’s meat furnished to respondent, who kept a hotel in Boonville. The plaintiff proved that he was a butcher and sold meats on a credit to the defendant. Having no other proof in support of his demand, he then offered to read in evidence the original account book, in which he had daily made his entries of the sales of meats, supported by an affidavit that his account was just and correct. The court refused to admit this evidence, to which the plaintiff excepted, and afterwards submitted to a non-suit, and brought bis case to this court.

1. The only question presented for our determination is, whether the original book of entries made by the plaintiff, with his guppletory oath, is competent evidence in support of his demand. None of the books maintain that there is any foundation in the common law for the admission of such evidence. Lord Torrington’s case is to the extent that courts have gone in allowing such evidence to be received. There the drayman, who delivered beer to his employer’s Customers, went every night to the clerk and had an entry made of each delivery. This statement of the quantities delivered, and of the names of the persons to whom the beer was delivered, was signed by the drayman and clerk. The drayman afterwards died, and it was held that the entries thus made and authenticated by the dray-man, were evidence for his employer against those to whom the beer was delivered. (Price v. Torrington, Salk. 285. 2 Lord Ray. 873.) This was upon the principle that the hearsay of persons speaking against their own interest is admissible. These entries were evidence against the drayman, and were acknowledgments of the quantity of beer he had received from the employer to be accounted for. Even this rule has been encroached upon, and there is a disposition to narrow it. Thus it has been held that, in order to make such entries evidence, it must appear that the shopman is dead; that he is abroad and not likely to return, is not sufficient. (Cooper v. Marsden, 1 Esp. 1.)

We do not deem it necessary to trace the origin and history of the rule which allows evidence such as was rejected in this case, in some of the states of the Union. It is enough to know that such a rule has never been recognized in the administration of the law in this state, and that it is murmured at in states in which it has been introduced. A case is not remembered, in which an attempt has been made to sustain such a rule by the opinion of this court. It is obvious that to permit a party to recover a debt, sustained only by his own affidavit, would be multiplying the temptations to perjury. Where the rule has been introduced, the courts have felt the necessity of laying it under restraints and qualifications which can only come appropriately from the law-making power.

This principle, having had no previous existence in the practice of our courts, it maybe questioned whether, under the present act regulating practice at law, there is any warrant for its introduction. This act prescribes that a party to an action may be examined as a witness at the instance of the adverse party. The statute having regulated the manner in which a party shall be introduced as a witness, all other modes of such introduction would seem to be impliedly prohibited. The reason of the rule which obtains in some of the states, is the necessity of the case, as the business carried on by a tradesman may be so small as not to warrant the employment of a clerk, and thus he would be without a witness to his dealings with his customers. As the demands of such tradesmen are usually inconsiderable in amount, and within the jurisdiction of a justice of the peace, the provision which was introduced in 1820, which allowed both parties to be examined as witnesses in all suits on notes, bills, or assumpsit, or on book account, when the plaintiff’s demand was controverted, may be regarded as a substitute for the rule established in some of the states. That provision introduced in 1820, affecting justices’ courts, with modifications, still continues in force.

The necessity for such evidence as is sought to be legalized by the judgment of this court, would be most sensibly felt in our probate courts, where the death of the debtor renders proof of an account necessary in all cases, as there are none to make admissions. Notwithstanding this consideration, we find our laws regulating administrations, as early as the 21st January, 1815, expressly prohibiting courts of probate from allowing any administrator for any disbursement, unless the demand against the estate was supported by such evidence as would have warranted a recovery in a suit at law. (Sec. 52.) This •provision has continued in our code to this day, and shows that the subject was in tbe contemplation of the legislative power, and there was an entire omission to give the least sanction to the rule now sought to be introduced. The other judges concurring, the judgment will be affirmed.


author: Ryland, Judge,

text:
    Harbin, Defendant in Error, vs. Chiles, Plaintiff in Error.
    1. A judgment was rendered in California against a resident of Missouri upon publication. Afterwards, as shown by the record, the defendant appeared by attorney, filed an affidavit and asked leave to answer, which was granted on condition of payment of costs, but he failed to answer, when the former judgment was reinstated. Held, the judgment was conclusive in this state.

      Error to Jackson Circuit Court.

      Hovey & Sheley, for plaintiff in error.
    1. The judgment, as originally entered in the Yulo District Court, was in the nature of a judgment in rem, and an action cannot be sustained on the same in this state. (Sallee v. Hays, 8 Mo. Rep. 116.) 2. The final judgment in this cause, in the Yulo District Court, is not a general judgment, nor judgment of recovery, but merely a re-instating of the former judgment — a mere revivor. (4 Mo. Rep. 222. Ib. 10. 3 Yerger, 426.)
    Adams, for defendant in error,
    cited 2 Am. Lead. Oases, 552. 5 Wend. 148. 6 Wend. 453. 2 Bay, 485. 7 Crunch, 418-81. 3 Wheat. 384. 5 Gill & J. 500.
   Ryland, Judge,

delivered the opinion of the court.

This is an action upon a transcript of a judgment of the District Court of Yulo county, in the state of California. Harbin sued Chiles in California, and had an order of publication in the newspapers of that state against him — constructive service only. The plaintiff then proceeded under the laws of that state, and obtained against defendant a judgment by default. After this judgment by default, Chiles appeared in court by Ms attorney, and filed Ms affidavit, that is, Chiles’ affidavit, and for reasons and causes therein set forth, moved the court to set aside the judgment by default, and for leave to answer to the plaintiff’s action. This motion the court sustained, set aside the judgment, and granted defendant leave to file Ms answer in thirty days upon the payment of costs. The defendant failed to answer within the time allowed him, and the plaintiff, on Ms motion, had the original judgment reinstated against Chiles. This suit is upon a transcript of that judgment. The defendant relies upon his making no defence, no appearance to the action, never having been served with process, and that the California court had no jurisdiction of his person. The court below found the facts as stated, and declared the law to be against the defendant; that his appearance by attorney, and making his motion, and filing his affidavit in the court in California, gave that court jurisdiction over the person of said Chiles, and authorized a general judgment to be given, and that such was binding and conclusive upon him. This is in accordance with the doctrine heretofore laid down by this court, after elaborate argument and full investigation of the various authorities on the subject. (See case of Warren & Dalton v. Julian H. Lusk, 16 Mo. Rep. 102.) The principles declared by this court in this case of Warren & Dalton v. Lusk, are decisive of the case now before us. The doctrine there laid down, “ that, when it appears from the face of the record, that the defendant had notice of the proceedings, that fact could not be controverted, as a record imports absolute verity,” applied to this case, must at once settle the controversy.

Such a judgment as this would be binding and conclusive between the parties here, if given by our own courts, and we must give to this judgment' of the court of a sister state, such credit, validity and effect as it has in the state where it was pronounced; for all that appears to the contrary, it was binding and conclusive between the parties in California, and will be so considered here.

The whole doctrine is so fully laid down and declared in the case of Warren & Dalton v. Lusk, that I might have contented myself by simply referring to the decision in that case, and affirmed this judgment. The judgment of the court below is affirmed,

Judge Scott concurring.


text:
    Harness, Appellant, vs. Green’s Administrator, Respondent.
    1. There is nothing in the constitution and laws of the United States to prevent a state from giving a preference to its own judgments over the judgments of sister states, in allowing demands against the estates of decedents.
    2. Under our administration law classifying demands, (R. C. 1845, sec. 1, art. 4,) only judgments of our own state can he placed in the fourth class. Judgments of sister states have no preference over simple contract debts.

      Appeal from Daviess Circuit Court.

    The facts are sufficiently stated in the opinion of the court.

      Gardenhire, for appellant.

      Í. The word “judgments” in the fourth subdivisión of the first section of the fourth article of the administration law, includes the judgments of sister states, as well as our own. 2. By the constitution of the United States, the citizens of each state are entitled to all privileges and immunities of the citizens of the several states. Under this clause, can a domestic judgment be put in the fourth class and a judgment of a sister state in the fifth? (See 3 Story’s Oomm. on Cons. 675.)

      Ji. Ji. King, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Harness, the appellant, obtained a judgment against J. W. Green, the intestate of the defendant, in the state of Virginia. A suit was afterwards brought on that judgment in Daviess county, in this state, against the administrator of Green, and there was a recovery had. This judgment was by the Circuit Court of Daviess county placed in the fifth class of demands against the estate of Green. This judgment was appealed from, on tbe ground that the judgment rendered here was founded on the judgment rendered against Green in his life-time in the state of Yirginia, which, under the constitution and laws of the United States, was entitled to be. placed in the same class as domestic judgments.

1. The precise point involved in this case, so far as it is affected by the constitution and laws of the United States, was settled by the Supreme Court of the United States, in the case of McElmoyle v. Cohen, (13 Peters, 312,) in which it was held that, in the payment of the debts of a testator or intestate in one state, the judgment of another state, whatever may have been the subject matter of the suit, cannot be put upon the footing of judgments rendered in the state; and it can only rank as a simple contract debt, in the appropriation of assets of the estate of a deceased person to the payment of debts. The cases of Ten Eyck v. Ten Eyck, decided in Georgia, and Cameron v. Wurtz, (4 McCord, 278,) in which it was held that, in the administration of insolvent’s estates, judgments obtained in other states take no precedence of simple contract debts, were cited with approbation. But the court says that, if the question was an original one, without the cases referred to, they would come to the same conclusion ; that the law of congress, of 26th May, 1790, made the judgment a debt of record, not examinable upon its merits, but it does not give to it, in another state, the efficacy of the judgment upon property or upon persons, to be enforced by execution ; that, to have the force of a judgment in another state, it must be made a judgment, and can only be executed in the latter, as its laws may permit.'

2. There is nothing in the words of our statute which would extend it to judgments rendered in our sister states, more than-to the judgments rendered in any foreign country. Under the words of the law, no one would pretend that a judgment rendered in Great Britain was contemplated. Now the idea that judgments rendered in our sister states were comprehended by the words of the statute, originated in the belief that, by the constitution and laws of the United States, an efficacy was imparted to them which required that they should be classed with domestic judgments. But as we have seen the light in which a judgment of one state is regarded in another by the courts of the United States, in the administration of insolvent estates, there can be no foundation for the pretension set up for the judgment rendered in Virginia. When laws speak of things, unless the words show otherwise, they are presumed only to have reference to those things which are within the limits of the territory in which the laws have effect.

In the case of Brengle v. McClellan, (7 Gill & John. 534,) it was held that a judgment of the state of Pennsylvania, conclusive between the parties in that state, and having a priority over bonds, single bills, and simple contract debts in that state, as against the assets of the defendant in the hands of his executor, is considered only as a simple contract debt, in the distribution of assets in the state of Maryland.

Judge Ryland concurring,

judgment affirmed.


text:
    Garner, Appellant, vs. Beauchamp, Respondent.
    1. Judgment affirmed because no question of law was ruled below against the appellant.

      Appeal from Oregon Circuit Court.

    Action to recover damages for the breach of an alleged contract. The record shows that the plaintiff offered evidence tending to prove the contract and the breach of it, and no evidence appears to have been offered by defendant. No exception was taken to the admission or rejection of testimony. Two instructions asked by plaintiff were given, and one asked by defendant was refused. The jury found a verdict for the defendant.
    No appearance for appellant.

      Woodside, for respondent.
   Soott, Judge.

This was an action begun in a justice’s court, and was taken by appeal to the Circuit Court, where, on a trial de novoy there was a judgment for the defendant.

As none of the instructions asked by the defendant were given, and as all those asked by the plaintiff were given, there is no ground on which he can seek a reversal of the judgment.

Judge Ryland concurring,

the judgment will be affirmed.


text:
    Powers, Defendant in Error, vs. Heath’s Administrator, et al., Plaintiffs in Error.

      1. The assignee of a note given for part of the consideration of a contract of' sale will not be affected by a subsequent judicial rescisión of the contract in, a proceeding to which he was not a party.

      Error to Morgan Circuit Court.

    The facts sufficiently appear in the opinion of the court-

      P. R. & E. R. Hayden and J. W. Morrow, for plaintiff" in error,
    among others, made the following points : 1. Powers-having failed to set up the rescisión of the contract as a de-fence at law is forever precluded. ( Cadwalader v. Mchison, 1 Mo. Rep. 470. 2 Mo. Rep. 77. 3 Mo. Rep. 321.) 2. Rrowder’s intestate being a hona fide assignee of the note sued upon, could not be affected by the decree rescinding the-contract, being no party to that proceeding. 3. The statutes of this state forbid an injunction in this case. (R. C. 1845, p. 314, §9, p. 582.)

      Wright and Gardenhire, for defendant in error,
    among; others, made the following points : 1. The nature of respondent’s defence was not changed by the assignment. He can make the same defence to the judgment as he could have made had it been rendered in favor of the original holder of the note.. (R. C. 1845, p. 191, §4.) This section was intended to embrace equitable as well as legal defences, {Barton's Rdndr v. Rector, 7 Mo. Rep. 524,) and is equally available against-the judgment, as against tbe note on wbicb it was rendered. Ib. 2. Tbe respondent is not precluded by bis failure to make tbe defence at law. (1 Story’s Eq. p. 81, §64 i. 7 Yes. 18, 19. 9 Yes. 467-8-9. 3 Bibb, 255-6. 7.Mo. Rep. 524. 11 Mo. Rep. 433. West v. Wayne, 3 Mo. Rep. 13. 9 Mo. Rep. 273-4. Ib. 336. 8 Mo. Rep. 625.)
   Scott, Judge,

delivered the opinion of the court.

This was originally a proceeding to obtain an injunction restraining the enforcement of a judgment obtained on a note, given in part payment for a tract of land conveyed to Powers, the defendant in error, on the ground of a failure of the consideration. Browder, the plaintiff in error, held the note as the representative of Jonas Heath, deceased, to whom it bad been assigned. While this suit was pending, Powers, the defendant in error, who was plaintiff in the proceeding for an injunction, filed an amended petition, in which be sets up as a ground of relief against the judgment at law, the fact that the note, the foundation of the judgment, was given in part payment of the purchase money for parcels of land, the contract for the sale of which bad been entirely rescinded by a judicial decree. This amended petition does not show that the suit which resulted in the decree for the rescisión of the contract, bad been instituted 'before the note giving rise to this controversy bad been assigned ■ito Browder’s intestate, who was no party to that proceeding.

It appears that the original ground for the injunction was -waived by the amended petition. It was so regarded by the ^parties, as the record and the finding of the court show that, on -ithe trial below, the matter set up in the amended petition was alone investigated. As the amended petition does not allege •that the contract was rescinded before the note was assigned, and as the fact is not so found by the court, Powers does not ■ show himself entitled to the relief be seeks, unless the law is, that the rescisión of the contract affected a prior assignee of - the note ; for, as be is asking relief from a judgment at law, the must-.sbow affirmatively the existence of the facts which entitle bim to that relief. Tbe burden is on bim to prove that the consideration of the note was destroyed by the decree, and that it bad not been assigned at the time of the institution of the suit, which resulted in a recision of the contract. As this fact was not shown, the only question presented by the record for our consideration is, whether a prior assignee of a note which is a part of the consideration of a contract of sale, which has been entirely rescinded by a proceeding to which be was no party, is affected by such proceeding.

1. We confess we can see no principle by which an assignee of a note could be affected by a decree in a suit to which be was no party. There is nothing, in our view, which relieves this case from the operation of the general rule which protects the rights of every individual against proceedings to which he is no party. The decree rescinding the contract was a nullity as to the as-signee of the note. Before be could be affected, the merits of the controversy in which the decree was rendered, should have been reinvestigated in a proceeding to which be was made a party.

The case of Heath v. Powers, (9 Mo. Rep. 774,) (the syllabus of which fails to state the point in the cause,) goes on the idea that an assignee, in cases like the present, is not bound by proceedings to which be is no party. The note here was assigned in writing, and the statute in force at the date of the assignment made such an assignment a transfer of the legal interest in the note, and enabled the assignee to sue in bis own name. This placed bim in a stronger position than was occupied by the plaintiffs in, the cases of Dawson v. Coles, (16 John. R. 51,) and Burton v. Dees, (4 Yerg.) in which it was held that a mere equitable assignee was not bound by a judgment in a suit on a note in the name of the assignor, after an assignment made prior to the institution of the suit. (3 Cow. & Hill’s notes, 975.)

Judge Ryland concurring,

tbe judgment will be reversed, and tbe bill dismissed.


text:
    Pearson, Respondent, vs. Inlow, Appellant.
    1. A party may recover the value of timber cut upon his land, although by mistake he led the defendant to believe that he was cutting the timber on his own land. In such a case, where an action of trespass is commenced before a justice, by filing a complaint in the form of an account, the supreme court will not disturb a judgment for the plaintiff, the recovery being limited to the damages for the mere taking of the timber.

      .Appeal from Audrain Circuit Court.

    Action originally commenced before a justice of the peace. The complaint filed was as follows :
    £ £ Abraham Iniow,
    ££ To John A. Pearson, Dr.
    ££ To trespass and damage on my land ; to cutting and hauling off timber, without the leave or consent of said Pearson, to the amount of twenty dollars damage.” ,
    At the trial, it appeared that Iniow bought of Pearson part of a tract of land owned by him, and before the purchase, they went together to ascertain where the line would run. They undertook to follow it by sighting from tree to tree. As they passed along, Pearson pointed out a large white oak, and remarked that the line must run near that tree, but did not undertake to designate the line precisely. There was evidence tending to show that the timber cut or caused to be cut by defendant would have been on the land bought by him, if the line had run as pointed out by plaintiff; but in fact was on plaintiff’s land. The court gave the following instruction :
    ££ If the jury find from the evidence, that the defendant cut or caused to be cut or carried away any timber from the land of the plaintiff, they will find such damages as he may have sustained by reason thereof.”
    The court was asked to instruct the jury to find for-the defendant, if they believed he had cause to believe from the representations of Pearson that the land from which the timber was cut or bauled off, was bis own land bought of Pearson. This instruction was refused, and the defendant excepted.
    The plaintiff had a verdict for ten dollars, and the defendant appealed.
    Jlnsell, for appellant.
    Guitar, for respondent.
   Scott, Judge,

delivered the opinion of the court.

1. If the plaintiff, through mistake, led the defendant into error, as to the ownership of the timber, such mistake would not have the effect of vesting the property of the timber in the defendant. The defendant would still be liable to the plaintiff for the value of the trees. As this action was commenced before a justice of the peace, and the complaint was in the form of an account, and as the recovery was limited by the instruction given for the plaintiff to the amount of damages arising from the mere taking of the timber, we see no reason for disturbing the judgment, or for turning around the plaintiff to another action.

The facts stated in the defendant’s instruction were evidence in mitigation of damages, or if they justified the trespass, would not have the effect of depriving the plaintiff of his property. This court will not disturb verdicts on the ground that they are against the weight of evidence.

Judge Ryland concurring,

.the judgment will be affirmed.


text:
    Dumey, Appellant, vs. Schoeffler, et al., Respondents.
    1. The supreme court will not disturb a non-suit voluntarily taken by a plaintiff, upon the overruling of a motion to strike out a part of the defendant’s answer. (Schutter v. Bockwinkle, 19 Mo. Rep. 647, affirmed.)

      Appeal from Chariton Circuit Court.

    This was a petition by Dumey against Sehoeffler and wife to recover possession of certain real and personal estate. The petition stated that, by the last will of Frederick Heneger, his widow became entitled to the property in question during her life or widowhood, and that she had since intermarried with the defendant, Schoeffler, whereby the plaintiff and Sarah Dumey, an infant, (who was made a defendant, her guardian refusing to join as plaintiff,) by the terms of the will became immediately entitled to the possession of the property.
    Schoeffler and wife answered, setting up, among other things, that so much of the will as required her to surrender the property upon her marriage was void.
    A motion to strike out this portion of the answer was filed ' and overruled, whereupon the plaintiff voluntarily submitted to a non-suit, and appealed to this court.

      Ciarle, for appellant.

      J. Davis, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This case presents the point of a petitioner taking voluntarily a non-suit, because the court below refused to strike out a part of the defendant’s answer. There was no compulsion by . the court- for this plaintiff to take this non- suit.

The case should have gone on, and the points involved have b,een settled by the court upon proper instructions, so that there might have been a judgment for one or the other parties upon the matters in the answer and petition, which remained after the petitioner’s motion to strike out a part of the answer had been overruled.

In cases where the giving or refusing to give instructions may affect the party’s right to maintain his action, there the ruling of the court may force a party to take a non-suit; in such cases, this court will look into the judgment and decision of the lower court thus forcing the non-suit on the petitioner, and will affirm or reverse, as the law may be.

1. In the case of Schuller’s Adm’r v. Bockwinkle’s Adm’r, (19 Mo. Rep. 647,) this court held, that we would entertain jurisdiction in cases where the courts below have, upon the trial of causes, decided questions which covered the plaintiff’s case, and obliged him to submit to a non-suit. But where parties voluntarily suffer non-suits, we do not interfere. If it was allowed to plaintiffs to take non-suits on every motion they might make, and which the court might overrule, and then bring the case here to test the correctness of the decision upon-the motion, this court would be filled with cases in all different stages of progress, and every question of practice might he brought here, to be settled before the merits of the ease were reached. Although the court refused to give judgment on the answer on motion made by the plaintiff, there was still to be a hearing of the cause, and, until that hearing, there could be no decision, by which the plaintiff was obliged to take a non-suit.” The case now before us comes fully within the principles of the case cited from 19 Mo. Rep. Here, a motion was made by plaintiff to strike out a part of the defendant’s answer. This motion was overruled, and thereupon the plaintiff takes voluntarily a non-suit. He was not compelled to thj could have had the decision of the court upon - that part of the answer, upon asking proper ir&trTSfetions. case was not decided by the court below upc strike out, and we will not suffer the parties tf/come ! every motion which is overruled or sustained voluntary non-suit.

This court formerly held, under the old practice, of error would not lie on the judgment of a court overruling a demurrer ; a final judgment on the demurrer must also be rendered. (Palmer v. Cram, 8 Mo. Rep. 619.) Upon the case, then, as it appears the party was not forced to take this non-suit, as the action of the court below did not cover his whole case, we must let the judgment below stand. We say nothing about the merits of the matter in controversy — nothing about the correctness of the action of the court below in refusing to strike out that part of the answer. The plaintiff went out of court, of his own accord, and we let him take his own writ course. Judgment affirmed;

Judge Scott concurring.


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    Tindle & Wife, Plaintiffs in Error, vs. Nichols, Defendant in Error.
    !■ In an action of slander, for a charge of false swearing before a grand jury, where the defendant justifies by pleading the trulh of the charge, a grand juror cannot (under sections 15 and 17 of article 3 of the act concerning practice and proceedings in criminal cases,) be permitted to testify how the plaintiff swore before the grand jury.

      Error to Cedar Circuit Court.

    Tbe facts are sufficiently stated in the opinion of the court.

      F. P. Wright, for plaintiff in error.
    The court erred in requiring the grand jurors to testify and disclose the evidence given by Mrs. Tindle before the grand jury. (Art. 3, secs. 15 and 17, tit. Practice and Proceedings in Criminal Cases, R. C. 1845. 1 Grreenl. Ev. §252. IB Maine, 82. 2 Halstead, 347. 1 Chitty’s Crim. Law, 316. 2 Hale, 161. Roscoe’s Crim. Ev. 149.)

      W. 11. Otter, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

The plaintiffs bring their action for slanderous words spoken by defendant of and concerning the wife of the plaintiff. The defendant justifies the speaking of the words by alleging their truth; that the plaintiff’s wife, as a witness before the grand jury, did swear falsely in a certain matter then under the investigation of the grand jury of Cedar county. There is no objection to the plaintiff’s petition or to the defendant’s answer.

On the trial of the case, the defendant, in order to prove his answer, introduced several of the grand jurors as witnesses. These witnesses were called on to state what the plaintiff’s wife had testified to before the grand jury in relation to the subject matter mentioned in the defendant’s answer.

The plaintiffs’ counsel objected to these grand jurors testifying. The grand jurors themselves also claimed to be excused and exempted from detailing the facts stated before them in this matter, but the court overruled the objections and required the witnesses to testify, in regard to what the plaintiff’s wife had sworn to as a witness before them, as members of the grand jury. To this, the plaintiffs excepted, and file their bill of exceptions.

The jury found a verdict for the defendant. Plaintiffs moved to set aside the verdict and for a new trial, which motion being overruled, exceptions were taken, and the plaintiffs bring the case here by writ of error.

1. The only question for our consideration arises upon the ruling of the court below, in regard to the admissibility of the grand jurors as witnesses. This is a grave question, and it has had the serious consideration of the court; and we are of opinion that these witnesses should not have been required or permitted to disclose the evidence given before them as grand jurors ; that the court below erred in this matter, and its judgment must b,e reversed.

The fifteenth section of the third article of our statute concerning practice and proceedings in criminal cases, and the seventeenth section of the same, have an important relation to this subject, and I will here notice these provisions.

The fifteenth section is as follows : “ Members of the grand jury may be required by any court to testify whether the testimony of a witness, examined before such jury, is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person, for perjury, or upon his trial for such an offence.” The seventeenth section: “No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto,” &c.

Thus stands the statute law. In what cases, then,, can a grand juror be lawfully required to testify as a witness in relation thereto? Such as are embraced in the fifteenth section cited above, and such only. This fifteenth section specifies these cases, and the bare specification excludes all other cases not enumerated. These cases are, first, “ Whether the testimony of a witness examined before such grand jury is consistent with or different from the evidence given by such witness before such court; and, secondly, may be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for perjury."

These are the cases where a grand juror may be lawfully required to testify in relation thereto. A grand juror hears a witness swear in court upon the trial of an indictment which was found by the grand jury of which the said grand juror was a member ; he remembers what that witness swore before his body upon the finding of the indictment, he hears the witness swear afterwards before the court on the same subject matter ; this grand juror may, under such circumstances, be called on to testify whether the witness swears consistently or not.

Should perjury be charged against such person, the grand juror may be called on to testify in relation to the charge or complaint. Should an indictment be found against such person for perjury, then on the trial thereof, the grand juror may be required to testify in relation thereto ; and these are the only cases in which grand jurors can be made to testify in relation thereto.

. Let us examine this matter a little. The grand jury is a secret tribunal. No person but the members are present when they consider and cast their votes, or express their opinions in relation to the finding or not of the bill of indictment — “ a true bill.55 But the circuit attorney may be present when the witness is examined ; he remembers the examination ; he takes an active part in bringing forth the testimony. The circuit attorney also, upon the trial of the indictment, knows what the witnesses will prove, for he heard them swear before. Should- a witness swear differently — should a witness contradict his former testimony, the circuit attorney may think it his duty to proceed against this witness for perjury; here, a grand juror becomes a competent witness. The defendant may suspect the truth of the witness ; he may call on a grand juror, and examine him as a witness as to the consistency or prevarication of the suspected witness. This is allowed for the reason of the secrecy of the grand jury. Witnesses, although they know the grand jury is a secret inquest, yet may know that, if they swear falsely against any person before this secret body, they are liable to be exposed and prosecuted for the crime of perjury. Witnesses also know that they are protected and kept concealed by this inquest; they are not, nor is their testimony made public, unless in the manner pointed out by law. “ The grand jury shall not disclose the name of any witness,” &c. Permit any party in any court, iil' any controversy, to call a grand juror as a witness and examine him as to what he heard a witness swear before his body, and you destroy at once one of the great, inherent, essential qualities of the grand juror. If you can examine a grand juror as a witness in an action of slander, so you may in any action ; break down this guard in one instance, and what will hinder it from being done in any or all others. These provisions of our statute concerning secrecy of grand jurors have their origin in the common law. Any person who may be present on the occasion is bound not to disclose what may transpire, and the jurors themselves are, by the terms of their oath; laid under the same obligation; and if they transgress it, they are finable. Formerly indeed, they bcame accessories to the offence of felony; and if treason, principals; and, at this day, it is, in general, a high misprision. But where a witness, examined on the trial, swears directly the reverse of the evidence given before the grand jury, they are at liberty to state this circumstance to the judge, who may direct him to be prosecuted for perjury on the testimony of the grand inquest. (1 Chitty’s Criminal Law, 317.) From all that is said on this subject in the books, it may be laid down that grand jurors are not.permitted or required to testify to^what has been given in evidence before them, unless it may be in the cases similar to those pointed out in the provisions of our statute above cited. Applying this doctrine to the acts of the Circuit Court in this case, and it will be seen that his judgment cannot stand. I do not find any error in the refusal to give the second instruction ashed for by the plaintiff.

Upon the view here taken of the secrecy of the grand jurors, and the duty of the courts not to interfere with that secrecy, unless in the cases pointed out by the statute, this judgment must be reversed, and the case remanded;

Judge Scott concurring.