text:
    The State, Respondent, v. Andrews, Appellant.
    1. The act concerning merchants and grocers, approved February 23, 1863, (Sess. Acts, 1863, p. Ill,) authorized the granting of licenses to grocers for a year.
    2. The act entitled “ an act to tax and license merchants” (B. C. 1866, p. 1077, § 22,) did not affect grocers’ licenses previously granted under the act of February 23, 1863; it is only applicable to licenses granted after May 1, 1856.

      Appeal from Polk Circuit Court.

    This cause was removed by change of venue from the circuit court of Greene county to Polk circuit court. The indictment in this case charged that the defendant, Benjamin G. Andrews, of, &c., on, &c., at, &c., “ with force and arms did then and there unlawfully sell a quantity of spirituous liquors, to-wit, one quart of whisky, and did then and there unlawfully permit the same to be drank at a place under his control, without then and there having a dram-shop keeper’s license, inn-keeper’s license or any other legal authority to sell said spirituous liquors, in manner and form aforesaid, contrary,” &c.
    At the trial the prosecution introduced a witness who testified that in June or July, 1856, at the time of the session of a district convention, he purchased a quart of whisky of defendant for twenty-five cents. The time of holding this convention was fixed by other evidence in the first week in May, 1856.
    The defendant offered in evidence the following license: “ State of Missouri. To all who shall see these presents— greeting: Know ye that Benjamin G. Andrews, on the 26 th day of November, A. D. 1855, filed bis bond with approved security, conditioned to pay, on or before the first day of November in each year during the continuance of his license, the state and county taxes which may be levied upon his business as a grocer. Now, therefore, the said Benjamin G. Andrews, under the style of B. G-. Andrews, is hereby authorized and permitted to vend and otherwise carry on the business of a grocer at any one place in the county of Greene for the period of twelve months from the first day of November, 1855. In testimony whereof, I, A. G. McCracken, clerk of the county court of Greene county, have hereto set my hand and affixed the seal of said court at office this 26th day of November, 1855.” The court refused to permit said license to be read. Defendant offered to prove that he had paid to the sheriff of Greene county the tax upon the license for the year 1856. The court ruled out the testimony.
    The court, at the instance of the state, instructed the jury as follows : “ If the jury shall believe from the evidence that the defendant, within the county of Greene, in the state of Missouri, and after the first day of May, 1856, but before the finding of the indictment, sold any quantity of intoxicating liquor called whisky in a less quantity than one gallon, they should find the defendant guilty.” The court refused to give the following instructions asked by defendant: “1. Unless they believe that the defendant knowingly and intentionally violated the law by selling the liquor as charged in the indictment, they will find for the defendant. 2. Although the jury may believe that there is a preponderance of evidence in favor of the state, unless they are satisfied beyond every reasonable doubt that the defendant sold the liquor since the first day of May, 1856, they will find a verdict for the defendant.”
    The jury rendered a verdict against defendant.
    Wright, for appellant.
    I. The instruction on the part of the state was wrong. The offence charged is evidently against defendant as a merchant or grocer. The charge does not consist in selling alone, but in permitting it to be drank at a place under his control. There was no evidence that he so permitted it to be drank. A merchant or grocer may sell spirituous liquor, but not in any quantity to be drank at his store, &a. (21 Mo. 493.) The license offered in evidence authorized defendant to sell spirituous liquor for an entire year. It was legally granted in pursuance of the act of February 23, 1853. By that act merchants and grocers were placed on the same footing. The act of 1855 can not affect the rights of defendant under his license. To permit it to do so would give it a retrospective effect, which is forbidden by the constitution ; it is also within the constitutional provision with respect to laws impairing the obligation of contracts. (Constitution of Missouri, art. 13, sec. 17 ; see also 2 Gall. 130 ; City of Hannibal v. Guyott, 18 Mo. 515 ; 9 Cranch, 43 ; 7 Johns. 477 ; 1 Sto. on Const. § 1398, 1385; Dartmouth College v. Woodward, 4 Wheat. 656 ; 3 Wash. C. C. 318 ; 6 Cranch, 87.)

      Ewing, (attorney general,) for the State.
    I. The indictment is sufficient. The court did not err in refusing to permit the license to be read in evidence. Defendant was indicted for a violation of the act of 1855, which took effect May 1, 1856. The license expired before the sale charged in the indictment was made. Being issued by the clerk it could continue only until the next term of court; but if issued by the court it could only continue in force six months. (R. C. 1845, p. 543-6, § 9, 15.) The court did not err in rejecting the evidence offered as to the payment of the tax on the license. The license alone could confer the authority to sell. (State v. Hughes, 24 Mo. 151.) The court did not err in giving or refusing instructions.'
   Scott, Judge,

delivered the opinion of the court.

The defendant, if he was answerable under the indictment at all, was only answerable as a grocer, as there was no evidence whatever that he suffered the liquor sold to be drank at the place of sale. He had a license as a grocer, dated 1st November, 1855, which authorized him to deal as such for the space of one year. This license was issued under the act entitled “ An. act concerning merchants and grocers,” approved 23d February, 1853. (Sess. Acts, 1853, p. 111.) As the party had thus purchased the privilege from the State of dealing as a grocer for the period of twelve months, we will not presume that the legislature, by any subsequent act, intended to take away or affect this privilege. We must construe the act of 1855 as only applicable to licenses which were granted after it took effect, and not to those granted under the act of 1853, which continued for twelve months. The other judges concurring, the judgment will be reversed.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    McElhany, et al., Defendants in Error, v. McHenry, Plaintiff in Error.
    1. After a judgment for costs is rendered against the plaintiff, it would he error to render a final judgment by default against the defendant without Ms appearance and without setting aside the former judgment.
    2. McAdams v. McHenry, 22 Mo. 413, affirmed.

      jError to Greene Circuit Court.

      Hendrick, for plaintiff in error.

      Wright, for defendants in error.
   Richardson, Judge,

delivered the opinion of the court.

The same irregularities appear in this record which were presented in McAdams v. McHenry, 22 Mo. 413. The cases are in all respects analogous. After judgment for costs had been rendered in favor of the defendant and against the plaintiff, a final judgment by default was rendered against the defendant without his appearance and without setting aside the former judgment.

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


text:
    The State, Appellant, v. Todd, Respondent.
    1. State y. Sloss, 25 Bio. 291, affirmed.

      Appeal from St. Clair Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The court erred in dismissing the cause. The act authorizing the dismissal on payment of costs and attorney’s fee of two dollars is not constitutional. (State y. Sloss, 25 Mo. 291.)
   Richardson, Judge,

delivered the opinion of the court.

This case is in all respects like the case of the State v. Sloss (25 Mo. 291), and for the reasons given in that opinion the judgment of the circuit court will be reversed and the cause remanded.

The other judges concur.


author: Scott, Judge,

text:
    Bankston’s Administrator, Respondent, v. Farris, Appellant.
    1. The facts constituting the cause of action and the kind of relief sought should be set forth in the petition with precision.
    2. In a case for the jury it is not proper to direct any fact to he put in issue. The issues in such cases are made by the pleadings and they should be submitted to the jury as thus made.

      Appeal from Morgan Circuit Court.

      Gardenhire, for appellant.
    I. There was no proof whatever tending to show that the slave Grace was assigned to Mrs. Farris as dower in the slaves of her first husband. The first and fifth instructions asked by appellant ought to have been given. They were in the nature of a demurrer to the evidence. The instructions given for plaintiff assume that there was such evidence and are therefore wrong.

      Morrow, for respondent.
    I. The marriage between Daniel Bankston, the elder, and his wife, the mother and father of Daniel Bankston, the younger, was sufficiently proved, as was the heirship of Daniel Bankston, the younger.' (2 Phillips on Evidence, 286.)
    II. The administrator of Daniel Bankston, jr., deceased, was the proper person to sue. (19 Mo. 9.)
    III. Dower may be assigned to a widow by consent as well as by process of law, as was done in this case.
    IV. The proof shows that the instructions given for plaintiff and those refused to the defendant were properly given and refused, and that the verdict is not for too much.
   Scott, Judge,

delivered the opinion of the court.

This is a very plain case as it appears by the record. All the difficulties which now surround it have grown out of the conduct of the suit. In the first place it is difficult to ascertain on what ground the suit is based, or, in other words, the precise remedy the party had in view when his petition was drawn. If he went for a partition of the slaves, it is obvious that the verdict and judgment are not appropriate to such a proceeding. Were the damages found the value of the interest of the plaintiff in all the slaves, or only the value of the slaves that were sold with the hires and profits of all the slaves ? On the latter supposition the cause is improperly here, for the suit as to the rest of the slaves is still pending and undetermined in the court below. If this was regarded as a suit in partition, a jury could not make it. By the common law an action would not lie to compel partition among the joint owners of a chattel. (Gudgell v. Mead, 8 Mo. 58.) The statute, since that opinion was delivered, has given a remedy to compel partition. Why did not the plaintiff proceed under the statute if he thought partition was his appropriate remedy ? If partition was not the remedy by reason of the denial of the tenancy in common by the defendant, why did lie not bring an action in the nature of trover and recover damages for tlie conversion of his interest ?

As the case now stands it is difficult for us to see whether this was a suit to be tried, under the act of 1849, by the court or by a jury. Unless the court will compel the plaintiff to state specifically the object of his action, and have his petition amended, if necessary, in order to show what is his aim, it will be out of its power to know how the cause shall be tried. If the action is for one thing, it must be tried by the court; if for another, it must be tried by a jury. In a case for a jury, it it is not proper that the court should direct any fact to be put in issue. The issues in such eases are made by the pleadings, and they are submitted to the jury just as they stand on the petition, answer and replication. The interest of the plaintiff seems to require that this judgment should be reversed, as it does not appear but that a portion of his rights have been overlooked in the proceedings in the court below.

The third instruction given for the plaintiff directed the jury to find for Mm if the intestate of the plaintiff was the son and heir at law of Daniel Bankston, sr.; that the plaintiff was his administrator; that Grace was the property of Daniel Bankston, sr., and gave birth to the children in the petition mentioned whilst in the possession of the defendant. This instruction throws out of view all considerations of the nature and duration of the interest of the defendant in the slaves, and takes the attention of the jury from the main fact in the ease, which was whether the slaves claimed were dower property in the hands of the defendant. Although other instructions might have directed the attention of the jury to that fact, yet the pointed language of the third instruction would convey the idea that a verdict might be found upon the state of facts therein supposed, making it thereby inconsistent with the other instructions.

We are of opinion that there was ample evidence, in relation to the property of the plaintiff in the slaves, to be submitted to the jury. Judgment reversed and cause remanded;

Judge Napton concurring.


text:
    Houx, Plaintiff in Error, v. Seat et al., Defendants in Error.
    1. "Where one of two adjoining proprietors grants permission to the other to join fences with him — the fence of each being upon his own land — the license thus granted is a personal privilege and is revocable; a sale of his land by such proprietor amounts to a revocation of the license.
    2. A purchaser who takes without notice of an agreement to join fences will not be bound thereby.

      Error to Cooper Court of Common Pleas.

    This was an action commenced before a justice of the peace to recover damages for wrongfully removing a partition or division fence. Upon the trial of the cause in the Cooper Court of Common Pleas, to which the same had been taken by appeal, it appeared in evidence that in the year 1853 Houx, plaintiff, and Isaac Lionberger were adjoining proprietors; that in that year Houx and Lionberger each built a string or line of fence on his own land; that it was agreed between them that the fence built on Lionberger’s land and that built on the land of plaintiff should be a division fence between tlicir lands ; that each should keep in repair his part of the fence; the plaintiff used and occupied the land on one side of the fence, and that Lionberger used and occupied the land on the other side, from 1853 to 1856; that in 1856 Lionberger sold his land to defendant Seat; that in May, 1857, the fence situated on the land thus sold by Lionberger was taken away by defendants and rebuilt about twenty feet further back upon the land bought by Seat; that the taking away of said fence exposed the premises of plaintiff to stock of all kinds; that plaintiff aided in keeping up the fence and caused some rails to be^put upon that part situate on land owned by Lionberger.
    The court, at the instance of defendants, instructed the jury as follows : “If the jury believe from the evidence that Lionberger, the vendor of Seat, merely (when he was owner of the land sold to Seat) gave the plaintiff license to join fences with him, and afterwards sold the land on which the fence was situated to the defendant Seat, said sale was a revocation of the license given by Lionberger to Houx, the plaintiff; and the defendant Seat or his agents had a right to take away or remove said fence ; and the jury must find for the defendants. 2. If Lionberger sold the land upon which the fence stood to Seat without any notice to Seat of the agreement between him and Houx, then Seat was not bound by any such agreement and could remove the fence at any time.”
    The jury found a verdict for defendants.
    Draffin, for plaintiff in error.
    I. The fence was established as a boundary line between Houx and Lionberger. The agreement to constitute the fence a division line was not required to be in writing by the statute of frauds. If good as between Houx and Lionberger for the purpose of creating a divisioü. fence, purchasers from them would be bound. (Taylor & Mason v. Zepp, 14 Mo. 482 ; 16 Mo. 276.)

      Douglass and Hayden, for defendants in error.
    I. The understanding between Houx and Lionberger was a mere license to Houx. There was no dispute between them as to the true line of boundary. There are no facts upon which an estoppel could be worked. The fence was situated entirely upon land belonging to Lionberger. (11 Mass. 294; 8 Kent Com. 438.) Taylor v. Zepp can not be applied to this case. The instructions given at the instance of defendants contained the law of this case. A license is revocable at any time. It may be revoked expressly or by implication. It was revoked in this case by the sale to Seat. The defendants had no notice of the agreement between the plaintiff and Lionberger, and the jury so found. Besides, the sale to Seat operated a revocation of the license.
   Scott, Judge,

delivered the opinion of the court.

The instructions given by the court properly declared the law of this case. The license of Lionberger to the defendant to join fences with him was revocable. The subsequent sale of the land was a revocation of this license granted by Lionberger, and the defendants had a right to remove their fence. The defendants do not appear to have had any notice of the agreement between Lionberger and IIoux. No mention was made of it in the deed from Lionberger to the defendants, nor were they in any way bound by it. It does not appear that any injury was suffered by the plaintiff in consequence of the act of the defendants. (Munford v. Whiting, 15 Wend. 380.) The other judges concurring, the judgment will be affirmed.


text:
    Delinger’s Administrator, Plaintiff in Error, v. Higgins, Defendant in Error.
    1. A sheriffs return of process, regular on its face, is conclusive upon the parties to the suit; its truth can not be controverted' by answer or otherwise in the suit in which it is made.
    2. After a defendant has appeared and obtained time to answer and has answered, it is too late to object to the sufficiency of the return of service of process.

      jError to Cole Circuit Court.

    The facts are sufficiently set forth in the opinion of the court.
    Parsons, for plaintiff in error.
    I. The appearance of defendant and his asking leave to file his answer was a waiver of all defects in the writ or return. (1 Comst. 227.) The filing of the answer in accordance with the leave granted was unquestionably a cure of all defects in the sheriff’s return. (Withers v. Rodgers, 24 Mo. 341; Powers v. Bowden, 13 Mo. 154.)
    II. Although the issue tendered by the defendant’s answer was immaterial, he having rested his case upon it and .• the jury having found against him, and he failing to move to set the verdict aside, he is now precluded from objecting to the ruling of the court or the verdict of the jury upon the trial of the issue tendered by him.
    III. But one trial by jury was contemplated by the practice act, and the defendant is not allowed to plead, first, to the jurisdiction and have that isssue tried, and afterwards answer to the merits and call another jury. After filing his answer, he is presumed to have waived all other defences not contained therein, and to have admitted all the allegations of the petition not controverted by his answer, except the defen-ces specially excepted by the statute. The allegations of the plaintiff’s petition standing thus admitted, it was the duty of the court to have let in the evidence offered by the plaintiff to prove the value of the hire of the slaves, so as to have been advised either by the finding the fact by the jury or of itself as to what relief should be rendered the plaintiff. The court erred therefore in excluding the evidence. After the verdict of the jury, the court should have rendered judgment for the plaintiff on the whole case. But the court, instead of so doing, committed manifest error in quashing the return and dismissing the suit. That a plaintiff, after recovering a verdict on the issues tendered by the defendants and with that verdict standing unobjected to, should be turned out of court for an alleged defect in the service of the original summons and his suit dismissed, is an anomaly in the law, at least to the younger members of the profession. The plaintiff was right in standing upon his case and in refusing to waive his rights by asking for an alias writ.

      Gardenhire, for defendant in error.
    I. It will hardly be contended that the service was sufficient. The statute expressly required the service to be by reading the writ to the defendant and delivering to him a copy of the petition, or by delivering him a copy of the petition and writ. (R. C. 1855, p. 1223, sec. 7.) The return shows the delivery of neither.
    II. The statute provides that when the defendant is a resident of the state, suit shall be brought against him either in tlie county within which he resides, or within the county in which the plaintiff resides and the defendant may be found. (R. C. 1855, p. 1220, sec. 1.) The court then had no jurisdiction over him unless the plaintiff found him in his county, and he could only find him by the sheriff, and prove the finding by a proper return when such finding was directly put in issue by an answer to the jurisdiction. That such answer was proper is plainly shown by the statute. It provides that the defendant may demur to the petition when it appears upon the face thereof that the court has no jurisdiction ; and when it does not so appear, objection may be taken by way of answer. (R. C. 1855, p. 123, secs. 6,10.) Now in this case the want of jurisdiction did not appear upon the face of the petition, but it resulted from the fact that the plaintiff did not find the defendant in his county — a finding made absolutely necessary by statute to give jurisdiction. Judgment ought therefore to have been rendered for defendant on the issue joined; but as it was not, the judgment af-terwards rendered for him, on his motion to quash, the record plainly shows is for the right party.
    III. Answering to the jurisdiction was no waiver of defendant’s right to object tc the sufficiency of the return. A plea to the jurisdiction, both under the old law and the new, is the first known in the order of pleading. (1 Chitty’s PI. 4401.) It waived nothing because there is nothing prior to it to waive.
   Richardson, Judge,

delivered the opinion of the court.

The writ in this case was issued August 23, 1856, to the sheriff of Cole county, and was returnable to the next term, in February. At the adjourned February term, in May, 1857, leave was given to the defendant to answer thirty days before the next term, and on the 28th of July following an answer was filed. The answer purports to state matter only in abatement. It avers that at the commencement of the suit the plaintiff was a resident of Cole county and the defendant a resident of Pettis county, and that he was not found in Cole county at the commencement of the suit nor since then. The issue as to the jurisdiction of the court, which it was assumed was presented by the answer, was tried by a jury, and the verdict was for the plaintiff. Afterwards, at the same term, the defendant filed a motion to quash the sheriff’s return, which motion was sustained, and the plaintiff refusing to ask for an alias summons, the suit was dismissed. If neither of the parties had resided in Cole county — no matter what the officer’s return had been, provided it has been in proper form — the objection to the jurisdiction could only have been presented by an answer; but the defendant conceded that the plaintiff resided in Cole county, and, no matter where he resided, the jurisdiction of the court attached, pi’ovided the summons was properly served and it appeared by the return that the defendant was found in Cole county. The question then was resolved into the sufficiency of the return. If the return was defective, it should have been quashed on motion before there was a general appearance, and then the plaintiff could have taken an alias or dismissed his stdt. But if the return showed that the defendant was found, and was otherwise regular on its face, it could not be contradicted in this suit by answer or otherwise. (Page v. Hallowell, 24 Mo. 590.)

The answer presented immaterial issues. That the defendant resided in Pettis made no difference, if he was found in Cole; and, if the return stated that he was so found, the fact "*could not be disputed, and the only remedy was by an action against the sheriff for a false return.

It is too late to object to the return on a summons after a defendant has appeared and obtained time to answer, and afterwards answers either to the merits or in abatement. The objection, in proper form, to the sufficiency of a return, should be the first step taken by the defendant in a cause.

The other judges concurring, the judgment will be reversed and the cause remanded, with leave to the defendant to answer to the merits.


author: Scott, Judge.

text:
    Harrison, et al., Respondents, v. Davis, Appellant.
    1. Judgment affirmed because no bill of exceptions is filed.

      Appeal from Callaway Circuit Court.

      Ansell, for appellant.

      Jones and Hayden, for respondents.
   Scott, Judge.

There being no bill of exceptions preserved in this cause, there is nothing on which the difficulties and questions suggested by the appellants can be properly presented to this court. The other judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Mauro, Circuit Attorney, v. Buffington, Auditor of Public Accounts.
    1. The “act to regulate the fees of the circuit attorney of the eighth judicial circuit,” approved March 1, 1851, (Sess. Acts, 1851, p. 216,) is an act specially applicable to St. Louis county -within the meaning of section 23 of the act concerning the revised statutes, approved December 6, 1855, (R. C. 1855, p. 1027,) and, consequently, it was not repealed by the act regulating fees contained in the revised code of 1855. (R. C. 1855, p. 756.)

      Application for a Mandamus.

    The facts sufficiently appear in the opinion of the court.

      Parsons, for the petitioner.
    I. The general fee law of 1855 did not repeal the act of 1851. The act of 1855 provides that the fees of circuit attorneys shall be as therein specified “ unless in cases where it is otherwise directed by law.” The act itself seems to contemplate exceptions. The act of 1851 is not of a “ public, general and permanent nature” within section 20 of the act concerning the revised statutes. It is an act specially'applicable to St. Louis county, and retains its vitality by virtue of section 23 of the act of 1855 concerning the revised statutes. The act of 1851 is not repugnant to the act of 1855. It is not therefore repealed by implication. (Dwarris on Statutes, 532 ; 5 Hill, 225 ; 2 Barb. 316.)

      Ewing, (attorney general,) for respondent.
    I. The act of 1851 is repugnant to the general fee law of 1855. It is a revision of the several acts on the same subject, and by its terms applies to and provides uniform fees for all the circuit attorneys of the state. A subsequent statute, revising the subject matter of former ones and indirectly intended as a substitute for them, although it contains no express words to that effect, must operate as a repeal of the former acts; and it makes no difference in the controlling operation of the later statute that it is general and the other special. (Smith, Com. 904; 1 Rich. 43, 154.) Section 23 of the act concerning the revised statutes does not except the act of 1851 from the operation of the general fee law. It embraces only such acts as are “ specially applicable” to St. Louis county or city eo nomine, and not such as apply to a municipal district or judicial circuit composed of St. Louis county. (Ludlow’s heirs v. Johnson, 3 Ohio, 694.) The law of 1851 is, in no proper sense of the words, “ specially applicable” to the city or county of St. Louis. It is also repugnant to the general law concerning costs.
   Napton, Judge,

delivered the opinion of the court.

This is an application for a mandamus upon the auditor of public accounts ; and the only question is, whether the act of March 1, 1851, entitled “ An act to regulate the fees of the circuit attorney of the eighth judicial circuit,” is repealed by the general fee law in the revised code of 1855. We are of opinion that the act of 1851 is not repealed either expressly or impliedly. The 23d section of the act concerning the revised statutes (R. C. 1855, p. 1027) declares that “ all acts and parts of acts, specially applicable to the city or county of St. Louis, and in force at the commencement of the present session of the general assembly, and not repealed or modified by some act of the present session specially applicable to said county or city, shall be and the same are hereby continued in force.” We consider the act of March 1,1851, as an act of this nature, substantially and to all intents and purposes an act specially applicable to St. Louis county. It is true that the name of the county is not recited in so many words, but the statutes, of which we take judicial notice, advise us that the eighth judicial circuit is limited to St. Louis county, and a* law regulating fees in that circuit alone is an act entirely confined in its operation to St. Louis county. That a law of this special nature may remotely or indirectly affect the state treasury or the interest of citizens in other counties, does not make the act any the less a special law applicable only to St. Louis county. It is probable that all the local acts of this character may occasionally or uniformly operate, directly or indirectly, upon the whole state or its citizens, but this is not the test by which it is to be determined whether the law is local or not.

Besides, there is no conflict between the general fee law and this special and local act. The general fee law indicates in terms that exceptions may be made by other acts. Moreover, the general repealing clause of the statute (sec. 20) does not appear strictly applicable to this act of 1851. The act is not of a general, public and permanent nature, nor is it alluded to in the revision of the fee law. The other judges concurring, the mandamus is awarded.


author: Scott, Judge, Richardson, Judge.

text:
    Doan et al., Defendants in Error, v. Holly & Walker, Plaintiffs in Error.
    1. It is improper to join in the same petition a cause of action against A. and B. with one against B. alone.
    2. An interlocutory judgment rendered at the return term of a cause, in an action not founded on a bond, bill or note for the direct payment of money or property, can not be proceeded on to final judgment at such return term; if, however, such interlocutory judgment be rendered at a term succeeding the return term, it may be proceeded on to final judgment at the term at which it is rendered. Section 11 of article 12 of the act concerning practice (R. C. 1855, p. 1280) relates only to the disposition of causes at the return terms.

    8. An action to foreclose a mortgage given to secure a promissory note is not an action founded on a bond, hill or note within section 11 of article 12 of the act regulating practice in civil cases (R. C. 1855, p. 1280); consequently an interlocutory judgment by default rendered therein at the return term can not he proceeded on to final judgment at such return term; an interlocutory judgment by default, rendered at a term succeeding the return term, may he proceeded on to final judgment at the same term at which the default is taken.

      Error to Andrew Circuit Court.

    This was a suit on a promissory note for $5,532.03 executed by defendants, Henry T. Walker and Charles E. Holly, and also to foreclose a mortgage executed in behalf of plaintiffs — the members of the firm of Doan, King & Co., the payees of the note — by Holly, one of the makers. At the April term, 1857, of the court — the return term — final judgment was rendered against defendants. This judgment was reversed at the July term, 1857, of the Supreme Court. (See report of case, 25 Mo. 357.) At the October term of the Andrew circuit court, the defendants having failed to answer, judgment by default was rendered against the defendants.

      Loan, for plaintiff in error.

      A. H. Vories, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

This case is reported in 25 Mo. 357. When here it was reversed for reasons stated in the opinion. The cause is again here with the errors in the proceedings for which there was heretofore a reversal of'the judgment.

It is now made a ground for the reversal of the judgment that the action not being founded upon a bond, bill or note for the direct payment of money or property, a judgment by default could not be proceeded on to final judgment at the term during which it was taken. (Sec. 11, art. 12, R. C. 1855, p. 1280.) The judgment in this case was reversed for the reason that there was 'a misjoinder of action. It was both a suit on a note and a suit for the foreclosure of a mortgage, with not the same parties to both suits. A proceeding to foreclose a mortgage is not one of those actions in which the law contemplates that a judgment by default should be proceeded with to final judgment at the return term. It has been holdon that where an action, which can be tried at the return term, is joined with an action which can only be tried at the second term, the trial of neither cause of action can be had at the first term. (Watson v. Walsh & Patterson, 10 Mo. 454.) When this cause was here at the last term, it was not necessary to determine whether the judgment by default could be proceeded with to final judgment, as the time had elapsed within which that objection could be made. The section, to which there has been a reference, relates only to a disposition of causes at the return term. In some cases final judgments are to be had at that term; in others final judgment can not be taken earlier than the term next after the return term. The statute did not intend to interfere with judgments by default taken at any other time than during the return term. The bare reading of the sections in relation to this matter is enough to satisfy one that such is its object. It is designed to restore in some measure the practice, which prevailed in this state before the act of 1849, of making the term next succeeding the return term the trial term in all other actions than those founded on bonds and notes for the direct payment of money or property. As by the present practice a plea or answer must be verified, and as there were cases in which no just defence existed to the action, and it' was nevertheless deemed politic by the legislature that some indulgence should be extended to the defendants in such cases, they were permitted to let a judgment‘by default go against them at the return term, as they could not swear to a defence; and the indulgence is then obtained by postponing the maturing of the default into a final judgment until the nest succeeding term. Defaults taken at any other term are not within the reason of the law. In the cases within the purview of the statute the law is satisfied if a final judgment is not rendered against the defendant at the return term. If it is rendered at any other term the statute interposes no delay in ripening it into a final judgment, as the defendant has had an indulgence of one term, which is all the law designed, and it matters not how that indulgence was obtained. It is sufficient that the party has had it.

Judge Napton concurring,

the judgment will be reversed and remanded.

Richardson, Judge.

I am in favor of reversing the judgment, but I do not concur in the construction which the majority of the court has given to the 11th section of article 12 of the practice act. (R. C. 1855, p. 1280.)


author: Richardson, Judge.

text:
    Parsons, Plaintiff in Error, v. Curry, Defendant in Error.
    1. Judgment reversed for want of a finding of the facts.

      Error to Cole Circuit Cowrt.

      Parsons and Edwards, for plaintiff in error.

      Gardenhire, for defendant in error.
   Richardson, Judge.

This cause was tried by the court without a jury and the record does not contain the finding of the facts. Eor this omission the judgment must be reversed and the cause remanded. It may be observed that this requirement only applies to suits brought under the act of 1849.

The other judges concur.


text:
    George, Plaintiff in Error, v. Williamson, Defendant in Error.
    1. A conveyance made in fraud of creditors is valid as against the grantor and his heirs; it can not be impeached by his administrator.
    2. A county or probate court has no jurisdiction, in such case, on the application of the administrator, though made at the instance of creditors, to order a sale of the land for the payment of debts.
    3. Where a conveyance is made in fraud of creditors, they, or any one of them, may in an equitable proceeding have the same set aside. The creditor Who first files his petition obtains thereby, it seems, a priority and is entitled to be first paid from the proceeds of the sale, if a sale is decreed.

      Error to Callaway Circuit Court.

      Jones and Hayden, for plaintiff in error.
    The county court had power to order the sale of real estate for the payment of debts, and whether the decedent may or may not have made a conveyance of his land in his lifetime, or whether such conveyance was valid or void, is not a question for the county- court to determine, as they, simply to satisfy the demands of creditors, order a sale of all the interest which the intestate had in the land which could be subjected to the demands of creditors. It is insisted that the same power exists in the county court to order a sale of real estate, where there has been a prior voluntary conveyance, as in the familiar case of a voluntary conveyance by last will, in which latter case there can be no question of its jurisdiction. In the ñrst case, as well as the other, the conveyance is void as to the demands of creditors, and as to them the title to the land still remains vested in the grantor. Such being the case, the right, title and interest, both of property and possession, was vested in the decedent Williamson at the time of his death, and he had such an interest as could be sold for the payment of his debts. It is conceived that the only question for decision is with reference to the power of the county court to order a sale of real estate for the payment of debts, and, whether the order was made by creditors petitioning or by the administrator petitioning in bebalf of the creditors, the title would pass to the purchaser at such sale, and he could not be affected in a collateral proceeding.
    II. The question as to the right of the administrator to set aside or annul the conveyance of his intestate has no application to this case, and the error consists in placing George in the attitude of administrator, and supposing that this suit is instituted by him as administrator to set aside the sale, when the whole suit is based upon the fact that he is purchaser, and suing as such to remove a cloud from his title. To show his right to purchase, see R. C. 1855, tit. Administration, sec. 82, art. 8, p. 147.
    III. The subject matter of this suit is real estate and not personal property. Therefore, without reference to the question of the administrator’s right to set aside the conveyance of his intestate, it has never been contended that he can do so in case of real estate, or that he could institute a suit for such purpose; and it is conceded that his acts would be wholly nugatory as he has no legal interest in the realty. The purchaser’s title to real estate under an order of sale from the county court receives its force and validity from the order of the court and not from any act of the administrator.
    IY. The county court is the only proper tribunal, under our system of laws, in which to settle and adjust the claims of creditors against the estates of decedents; and, under the provisions of our statutes regulating the pro rata distribution of estates in case of insolvency, it would be in direct contravention of the statute to allow a creditor to sue in a court of equity and thereby to obtain a lien and preference over other creditors. Hence a proceeding in the county court for the sale of the real estate for payment of debts was not only the proper but the express and peculiar remedy in such case, and is, as regards convenience, best and most wisely adapted to the speedy adjustment of small demands, and prevents the necessity of a resort to chancery, which would result — each creditor having an equal right to sue — in wasting the property in expensive and vexatious litigations.

      Hardin, for defendant in error.
    I. The decedent Williamson had not such an estate in said lands as might be sold by the administrator under orders of the county court for the payment of the debts of decedent. (R. C. 1845, p. 73, § 1, 2; p. 84, § 9; p. 525, § 2.) To subject these lands to the debts of decedent is the remedy of the creditors and not of the administrator.
    II. The deed from decedent to defendant is valid until questioned by creditors of decedent and those in privity with them in the manner provided by law. (McLaughlin v. McLaughlin, 16 Mo. 242; Criddle’s Adm’r v. Criddle, 21 Mo. 522 ; 4 Blackf. 141; Roberts on Fraudulent Conveyances, 590, note ; Brown v. Finley, 18 Mo. 375.) This was the law in New York till changed by statute. (Osbourne v. Moss, 7 Johns. 160 ; 2 Hill, 185 ; 10 Paige, 218.)
    III. If the above positions be erroneous, then the demurrer was properly sustained for the reason that there was a defect of parties in this that the creditors of decedent are not parties to this suit. (Brockman v. Bowman, 1 Hill, 338.)
   Napton, Judge,

delivered the opinion of the court.

The administrator of the estate of Thomas Williamson, at the instance of the creditors, applied to the county court of Callaway county for an order to sell the real estate of the deceased for the payment of his debts, the personal property having been exhausted. Among other tracts of land desired to be soid, the administrator represented that a certain tract, describing it, had been conveyed by the deceased in his lifetime to his daughter, and that this conveyance was fraudulent and void as against said Williamson’s creditors. The county court made the order. The land in question was sold in the usual way, and the administrator became the purchaser. He then filed his bill in the circuit court against the daughter of Williamson, setting out' the facts above stated, and praying the court to set aside the conveyance to the said daughter and -decree the title to the land in the plaintiff. There was a demurrer to the bill, which was sustained.

Ill our opinion the demurrer was properly sustained. The conveyance of Williamson, however fraudulent against his creditors, was valid against him and his heirs. At his death the land constituted no part of his estate, nor could the administrator, who represented his interests, undertake to set it aside; nor had the county court any jurisdiction over the matter. The sale therefore under the order of the county court conveyed no title.

Where a fraudulent conveyance is made, the creditors or any one of them may file a bill in equity to have thé same set aside; and in such cases it seems to be the better opinion that the creditor who first files his bill obtains a priority, and is entitled to be first paid from the proceeds of the sale, if a sale is decreed. (4 Blackf. 145.)

Such has been substantially declared to be the law by several previous adjudications of this court, and whatever opinion I might entertain individually in relation to the policy or propriety of the course pursued in this case, its illegality is too well settled to be now sanctioned without a change of legislation. (Brown v. Finley, 18 Mo. 375.)

The other judges concurring, the judgment is affirmed.


text:
    City of Boonville, Respondent, v. Ormrod’s Administrator, Appellant.
    1. Where proceedings are instituted to condemn and appropriate private property to public uses, notice thereof should be given to the owner of such property.
    2. Notice of such proceeding given to an administrator will not be notice to the heirs; notice must be given to the heirs. t
    3. The city of Boonville instituted proceedings under its charter to condemn real estate belonging to an intestate’s estate, and notice of such proceedings was given to the administrator and not to the heirs ; held, that the proceedings were invalid for want of notice to the heirs.

      Appeal from Cooper Circuit Cowrt.

    This was a proceeding instituted in behalf of the city of Boonville under its charter for the purpose of opening and extending Chestnut street in said city over real estate belonging to the heirs of Joseph Ormrod, deceased. A summons was issued for a jury of freeholders to assess the damages and benefits. Notice of the proceeding was given to John M. McCutchen, administrator of said Joseph Ormrod, deceased. The jury viewed the premises, and assessed the sum of $200 as damages to the estate of Ormrod. The administrator appealed to the circuit court. The jury assessed the -damages at $250. Judgment was rendered accordingly. The administrator moved the court to set aside the verdict and dismiss the proceeding, on the ground that the heirs of Ormrod had never received notice thereof. The court overruled the motion.

      Douglass and Hayden, for appellant.
    I. Ormrod’s heirs and not his administrator were the parties interested in the land. Notice should have been given. The administrator was the only party notified; he was the only party that appealed, as appears from the entry on the mayor’s docket. The recital in the appeal bond could not make the heirs parties. To condemn private property without giving the owners notice would be a gross abuse of the right of eminent domain.

      Draffin and Hutcheson, for respondent.
    I. The proceeding was conducted in strict conformity to the charter of the city of Boonville. (See Sess. Acts, 1839, p. 297, § 13; Sess. Acts, 1847, p. 183.) The owners were parties to the proceeding. They made themselves such by taking an appeal to the circuit court. The administrator could not take the appeal because he could not make the necessary'affidavit. The party must swear that he is injured by the judgment. The administrator had no interest in the land condemned. The owners took the appeal through the administrator as their agent.
   Scott, Judge,

delivered the opinion of the court.

This was a proceeding on the part of the plaintiff to condemn for public use lands belonging to the estate of Joseph Ormrod, deceased. Notice of the intention to take such steps was given to John M. McCutchen, administrator of Ormrod, but none was served on the heirs of the deceased.

In order to ascertain who are the parties to a legal proceeding we look in the record for those who have been served with notice or who appear and defend. The respondent seems to have been aware of the necessity of giving notice to those whose rights were to be affected, but, while acknowledging this necessity, gives the notice to one who is in nowise interested. It is not seen how McCutchen, as administrator, could be made a party to a proceeding affecting the rights of the heirs of his intestate. It does not appear that he was empowered to act as their agent, and if he was, the notice should not be to him but to the heirs. From the record it does not appear that they had any notice. The unauthorized use of their names in the bond of McCutchen, who actually took the appeal and who aloné had notice, could not affect them. The constitution may not require notice to be given of the taking of private property for public use, yet when the legislature prescribes a mode by which private property may be taken for such purpose, we will, out of respect to it, suppose that it did not contemplate a violation of that great rule, recognized and enforced in all civil governments, that no one shall be, injuriously affected in his rights by a judgment or decree resulting from a proceeding of which he had no notice and against which he could make no defence. Nothing would so much impair that just self-respect arising from the ownership of property, fairly acquired, as the reflection that it is subject to be defeated by others without notice to the possessor. The times require that courts should be zealous in carrying out that great aim of government — the defence of men and their children in the enjoyment of property acquired by their diligence, toil and labor. No man can cherish a warm affection for a government that suffers others, without notice and behind his back, to seize and appropriate his property on occasions justified by no emergency. In a case in 15 Wend. 374, it was held that private property could not be taken for public use without notiee of the proceeding to the owner, but that it was competent to the legislature to direct the mode of giving such notice; and if the requirements of the statute in such cases should be complied with, it would be sufficient. The case of Corliss v. Corliss, 8 Yerm. 373, was one in a probate court, and it was remarked that notice is so essentially necessary that without it such proceedings are uniformly held to be void, except in cases where the statute has provided specific means of relief. So far has this principle been carried that such proceedings have frequently been adjudged void for want of notice, even where none was directed by statute.

The fourth section of the act amendatory of the charter of the city of Boonville (Sess. Acts, 1847, p. 183) directs that if the parties can not agree upon a compensation, the mayor shall cause the same to be ascertained by a jury, &c. In the case of Hinckley and others, 15 Pick. 448, a similar provision in a statute providing for an agreement of the parties was held clearly to indicate that the legislature contemplated a notice to the party whose property was to be taken for public use. (See Angell on Highways, § 122.)

Judge Napton concurring,

the judgment will be reversed.


text:
    Brent et al., Plaintiffs in Error, v. Cobb & wife, Defendants in Error.
    1. A. B., in the presence of his niece, a young lady living with her mother and attending school, requested a merchant to furnish goods to her and charge the same to him. Held, that goods purchased by her before the countermanding of the order were purchased upon the credit of the uncle and not of the niece ; that she would not be rendered liable therefor by reason of a revocation or countermand not communicated to her and of which she had no knowledge.

      Error to Cooper Court of Common Pleas.

    This was an action for goods alleged to have been sold and delivered to the defendant, Mary Beatty. During the pendency of the suit, the defendant intermarried with John Cobb, who was thereupon made a party to the suit.
    The court, at the instance of defendants and against the objection of plaintiff, instructed the jury as follows: “ 1. If the jury believe from the evidence that the goods purchased by defendant were bought upon the credit of William L. White and by his consent, then the jury must find for the defendants. 2. No arrangement made between plaintiff and William L. White subsequent to the purchase of the goods can affect the rights of defendant or render her responsible for the same, unless she had notice of such arrangement and was a party to the same; and the jury are instructed that there is no evidence in this case of defendant’s having had any such notice.” The court also, at the instance of the defendants, gave the following instruction : “ 3. The pleadings admit an indebtedness from defendant to plaintiffs of seven dollars and twenty-five cents.”
    The court refused the following instructions asked by plaintiffs : “ 1. If the jury believe from the evidence that the goods embraced in the account mentioned in the petition were sold and delivered by the plaintiffs at and for the prices therein mentioned, to Mrs. Mary Cobb, then the jury must find their verdict for the plaintiff and they may allow interest thereon. 2. Although the jury may believe from the evidence that William L. White authorized Max*y Cobb to purchase of plaintiffs goods, wares, &c., and have the same charged to him, he (White) had the right to revoke said authority at any time ; and if there was a revocation any goods purchased thereafter did not bind White. 8. If the jury believe from the evidence that the goods in question were purchased and credited to White as the agent of Mary Coob, and they further find, from the mutual transactions of the said Mary Cobb and William L. White, that she was the real purchaser, then she is responsible therefor and they must find for the plaintiffs. 4. If the jury find from the evidence that White was the agent of Mrs. Cobb in the purchase of the goods in controversy, and the same was not known to plaintiffs in this suit at the time the credit was given, they had in law the right afterwards to credit and charge the same to Mrs. Cobb, and to make a charge or transfer on their books for such purpose.”
    The jury found a verdict in behalf of plaintiffs for $7.25.
    Draffin, for plaintiffs in error.
    I. The goods in question were, in judgment of law, sold to defendant Mary Cobb. Even if part of the goods were in the first instance charged to White, yet if in point of fact the defendant made the purchase and received the benefit, she was liable as the real party to the contract.

      Stephens & Vest, for defendants in error.
    I. The goods were sold to Mary Beatty on the credit of White; she is not responsible therefor. If plaintiffs permitted the defendant to continue the purchase of goods under the belief that it was upon White’s credit, without informing her that White had revoked her authority so to purchase, then she is not responsible to them for any of said goods. (Story on Agency, p. 320 and cases cited; Smith on Contracts, 378 and notes.)
   Napton, Judge,

delivered the opinion of the court.

Under the circumstances of this case, we are satisfied that the verdict of the jury was right, and found under a correct exposition of the law by the court.

The defendant was a young lady attending school in Boon-ville, and, at the request of her uncle, W. L. White — made in the presence of the merchant, about the time she commenced going to the school — she contracted an account for goods amounting to $168, beginning in May, 1853, and extending down to December, 1854. The plaintiffs were directed by White, in the presence of the defendant, to charge such goods as defendant might purchase to him, and they were so charged until the 21st of September, 1854. About this time White countermanded the order and directed the plaintiffs to charge defendant’s account to her and said he would no longer be responsible therefor. This revocation was not communicated to defendant by the plaintiffs, nor is there any evidence that she had any information of this change of intention on the part of White, or change of credit on the part of plaintiffs. White lived at the house of defendant’s mother.

The instructions asked by the plaintiffs are undoubtedly the law, but inapplicable to the facts of this case. Where a young lady attending school, by the express authority of her uncle communicated to her in the presence of the merchant, makes a bill of goods which upon its face is clearly within the authority both as to the amount and the character of goods furnished, a court is well warranted in holding that she is not responsible for the goods, and the circumstance that a private direction is subsequently given to the merchant to treat the account as the individual account of the lady can not and ought not to affect her responsibility. A young lady might feel no hesitation in contracting an account under such circumstances, when at the same time, without such authority, a commendable sense of propriety would have prompted her carefully to abstain from subjecting herself to any such personal pecuniary responsibility. It was the duty of the vendor to have apprised her of the revocation of authority, if his intention was to hold her responsible for subsequent dealings. Besides, in this case, the defendant was living with her mother, and, in the absence of any express authority or peculiar circumstances, the presumption might reasonably be indulged that the seller looked either to the uncle or mother. The jury in this case found that the credit was given to the uncle. Judgment affirmed ;

the other judges concur.


text:
    The State, Appellant, v. Hilton et al., Respondents.
    1. An indictment for a rescue should state the nature and cause of the imprisonment of the person alleged to have been rescued; it should also state whether the person from whom the rescue was made was a public officer or a private person.

      2. If a rescue be made of a person in the custody of a private person, there is no offence unless the rescuer knows that the person in custody is under arrest for a felony or misdemeanor.

      Appeal from Macon Circuit Court.

    The following is the indictment, the quashing of which constitutes the error complained of: “The grand jurors for the state of Missouri, for the body of the county of Macon, upon their oaths present that Hamilton Hilton, Elijah Levitt, John Baker, John Davatt and William Owens, late of the said county of Macon, on the first day of March, in the year 1857, at, &c., did by force rescue one Christian Comfrey from Allen C. Gunter, by whom he was then and there held in custody for an offence other than a felony, against the peace and dignity of the state.
    “ And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Hamilton Hilton, Elijah Levitt, John Baker, John Davatt and William Owens, on the day and year aforesaid, at the county of Macon aforesaid, did by force rescue and set at liberty one Christian Comfrey, who was then and there held in lawful custody for an offence other than a felony, against the peace and dignity of the state.
    “ And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Hamilton Hilton, Elijah Levitt, John Baker, John Davatt and William Owens, on, &c., at, &c., did assemble together with intent with force and violence to do an unlawful act, to-wit, to rescue one Christian Com-frey from one Allen C. Gunter, by whom he was then and there lawfully held in custody, and did then and there in a violent and turbulent manner, in furtherance of said purpose, rescue and set at liberty the said Christian Comfrey from the lawful custody of the said Allen C. Gunter, against the peace and dignity of the state.”

      Ewing, (attorney general,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The indictment for a rescue should state the nature and cause of the imprisonment of the person alleged to have been rescued; (1 Russ, on Crimes, 434;) and it should also state whether the person from whom the rescue was made was a public officer or a private person. (1 Hale P. C. 606.) For, whilst the custody of a person in the hands of a public officer would imply notice that the prisoner was lawfully held and the rescue would be at the peril of the party making it, the offence would not exist if the rescue was made from the custody of a private person, unless the defendant knew that the prisoner was under arrest for a felony or misdemeanor.

This indictment neither states the cause of the imprisonment of Comfrey, nor whether Gunter was a public officer, nor, if a private person, that the defendants knew why he had Comfrey in custody.

The indictment was properly quashed, and the other judges concurring, the judgment will be affirmed.


text:
    The State, Defendant in Error, v. Porter, Plaintiff in Error.
    1. Counts for larceny and embezzlement may be joined in the same indictment ; and where they relate to the same transaction it is not error to refuse to compel the prosecutor to elect upon which count he would proceed.
    2. The words “ belonging to any other person,” in section 39 of article 3 of the act concerning crimes and punishments (R. C. 1856, p. 579), mean any other person than the officer, servant, &c., guilty of embezzlement.
    3. In an indictment founded on section 39 of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579), it is not necessary that the prosecution should prove by direct and positive Evidence that the conversion charged is without the consent of a railroad corporation, the alleged master or employer.
    4. In an indictment founded on section 37 of the “ act to authorize the formation of railroad associations and to regulate the same” (R. C. 1855, p. 430), it is not necessary to allege a neglect or refusal on the part of defendant to pay over on demand the moneys, &e., alleged to have been converted.
    5. In the case of an indictment against a ticket agent for embezzling funds belonging to a railroad company it is competent for the prosecution to show the course of business pursued by the defendant and required by the rules of the company by introducing in evidence duplicate blank returns used by the ticket agents of the company; the prosecution is not bound in such case to resort to the blank returns actually filled up and transmitted by the defendant as ticket agent to the treasurer of the company.

      6. It is not error to permit a witness for the prosecution to be recalled and reexamined after the evidence on the part of the prosecution and also on the part of the defence is closed.

      Error to Cole Circuit Cowrt.

    This was an indictment against James J. Porter for larceny and embezzlement as the agent of the Pacific Railroad. The indictment contained three counts; one for embezzlement, framed on the 39th section of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579); one for larceny, on section 25 of article 3 of said act, and the third for embezzlement, on section 37 of the act concerning railroad corporations (R. C. 1855, p. 430).
    The defendant moved the court to quash the first and third counts of the indictment. The motion was overruled. The defendant then moved the court to require the prosecution to elect the count of the indictment upon which the defendant should be tried. The court refused the motion.
    During the progress of the trial the court admitted in evidence, against the objection of defendant, a blank form for a ticket agent’s return. These blanks read as follows:
    “ N. B. Agents are required to remit to the treasurer daily all moneys received by them on account of the company, deducting only the amount paid for expenses or freight forwarded.
    “ Pacific Railroad,-station,-185 — . Samuel Copp, jr., treasurer. Sir: — The receipts of this office this day have been as follows, viz: For freight and charges on goods received and on goods forwarded, including extra baggage, storage and interest, $-; from passengers, as per report No.-to general ticket agent, f-; total, $-. I hand you herewith cash to balance.
    [Signed]-, Agent.”
    The evidence showed that the blank receipts or returns filled up by defendant Porter and transmitted to the treasu-urer of the company were similar to the above.
    After the close of the evidence on both sides and the instructions were agreed upon by the court, the court permitted tbe prosecution to recall witnesses and give additional testimony. Exceptions were duly taken.

      Parsons and Edwards, for plaintiff in error.
    I. Tbe defendant could not be indicted for embezzling from tbe company, be being their agent. The words “ any other person” do not refer to the principal or employer. The first count is bad.
    II. The third count is like the first excepting that it does not charge embezzlement in terms, but a felonious conversion. It is insisted that this count is under section 39 of article 3 of the act concerning crimes and punishments, and bad for a like reason as the first. To make the indictment good under the railroad act, it was necessary to allege a conversion and a demand and a refusal to account. Nor is the conversion in this case alleged to have been without the consent of the company.
    III. The blank return read in evidence was inadmissible. It did not appear that the blank had ever been in the custody of the prisoner or that he had ever seen it. Nor did it appear that the prisoner had ever adopted this blank. His returns were in the possession of the prosecution. They should have been required to produce them as the best evidence of the form and substance of the returns the prisoner was in the habit of making. (1 Greenl. Ev. 99 ; 2 Cow. & Hill’s Notes, 540 ; Commonwealth v. Kinnison, 4 Mass. 646.)
    IY. The first and second instructions given at the instance of the prosecution are erroneous. The same objections apply to them as to the first and third counts of the indictment. The fifth instruction is erroneous. It was necessary to show under the first count by positive proof, if attainable, that the conversion was without the assent of the employers, the Pacific Railroad Company. (Williams v. East India Co. 3 East, 193, 201 ; 2 Cow. & Hill’s Notes, 423-4; Rex v. Rogers, 2 Camp. 654.) This was a material averment, yet no direct or positive evidence was introduced to support it. Mr. McPherson, the president, did not swear that the conversion was without the consent of the company; nor was any officer having control of the funds of the company produced on the trial. The objection was not removed by the confession of the prisoner. (People v. Hennessy, 15 Wend. 154.) The 25th instruction ashed by defendant should have been given.
    V. It was too late, after the. close of the testimony and the court had declared the law of the case, for the prosecution to offer other evidence in chief.
    VI. The 14th instruction should have been given. The jury were bound to know what kind of funds had been embezzled. Judgment could not be rendered for the conversion of funds unknown.
    VII. There was no evidence except the prisoner’s confessions that any crime had been committed.

      Ewing, (attorney general,) for the State.
    I. It was not necessary to allege in the third count of the indictment the non-assent of the Pacific Railroad Company. (1 R. C. 1855, p. 430.)
    II. A motion does not lie to quash an indictment for a felony. (State v. Rector, 11 Mo. 28 ; State v. Smith, 16 Mo. 550; 1 Chitt. Crim. Law, 300.)
    III. The motion to require the prosecution to elect on which count they would proceed to trial was properly overruled. (R. C. 1855, p. 640; R. G. 1855, p. 1176; State v. Jackson, 17 Mo. 544; State v. Lenard, 22 Mo. 449 ; 3 Hill, 160 ; Bailey v. Ohio, 4 Ohio, State R. 440.)
    IV. The blank forms of reports made by defendant, as agent of the Pacific Railroad, to the treasurer of the company were original and primary evidence..
    V. It was a matter of discretion with the court below to permit the State to give further testimony after the defence had closed their testimony. (Rucker v. Eddings, 7 Mo. 115; Brown v. Burrows, 8 Mo. 26 ; 4 Binn. 198 ; 5 Binn. 489.)
    VI. The court committed no error in giving or refusing instructions. (Huter v. State, 2 Mo. 135 ; Hawkins y. State, 7 Mo. 192 ; Roscoe C. E. 41; Whart. C. L. 420.)
    VII. The words “ belonging to any other person” mean any person except the officer, agent, clerk, &c., embezzling. (People y. Hennessy, 15 Wend. 147; 2 Mete. 343.)
    VIII. A demand and refusal of payment by defendant were not necessary before he could be convicted under the third count.
    IX. The offence was conclusively established by Eelps’ testimony alone. It was equally well established by the confession of defendant and the facts and circumstances corroborating it.
   Napton, Judge,

delivered the opinion of the court.

Several points have been raised in this case which we will notice in their order.

1. The refusal of the. court to compel the prosecutor to elect upon which count he would proceed is one of the errors assigned. The indictment contains three counts — one for larceny and two for embezzlement. Of the latter, one count is framed upon a section of the general act concerning crimes and punishments, and the other on the 37th section of the railroad corporation act. (R. C. 1855, p. 430.) Our statutes contain some provisions on the subject which would seem to preclude all doubt about the propriety of the joinder of counts made in this indictment. The 23d section of the 4th article of the act concerning practice in criminal cases (R. C. 1855, p. 1176,) says that “ counts for larceny and embezzlement may be joined in the same indictment.” The 15th section of the 9th article of the act concerning crimes and punishments declares that upon an indictment for larceny the defendant may be convicted of embezzlement; and, vice versa, that he may be convicted of larceny oh an indictment for embezzlement. If a defendant can be convicted of larceny where embezzlement only is charged in the indictment and may be convicted of embezzlement where the charge is larceny, it would seem to follow, without any express provision such as is found in the 23d section referred to above, that counts on larceny and embezzlement could be joined.

In point of law, however, and without reference to these statutes, it is not error to insert in the same indictment several distinct felonies, though committed at different times, provided they are of the same degree, and will admit of the same legal judgment. If the several counts refer to different transactions, in point of fact, it is a matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where the offences are distinct and of a different nature and calculated to confound the defence. Where the offences are of the same character, differing only in degree, as, for example, forging a note, and publishing it knowing it to be false, the defendant may be tried upon both charges under the same indictment. It is usual to frame several counts, where only a single offence is intended to be charged, for the purpose of meeting the evidence as it may transpire at the trial; and in such cases the court will not compel the prosecutor to elect.

All the counts in this indictment relate to the same transaction, and are framed on different sections of the statute to meet the evidence which the trial might elicit. The offences charged are not repugnant, but will admit of the same judgment. (Wharton’s Am. Cr. L. 204; 1 Chitt. Cr. L. 235; People v. Rynders, 12 Wend. 425; Wright v. The State, 4 Humph. 196.)

2. The 39th section of article 3 of the act concerning crimes and punishments provides that if any clerk, servant, &c., shall embezzle, &c., without the assent of his master or employer, any money, goods, &c., belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall be punished, &c. It is insisted that the words “ any other'person” in this section mean any other person than the master or employer; and consequently that embezzlement of money or goods belonging to the master himself is not within the provision. This section is substantially the same with the section of the New York code on the same subject, upon which the supreme court of that state passed judgment in the case of The People v. Hennessy, 15 Wend. 150. These words are there adjudged to mean any other person than the servant who is guilty of embezzlement.

The section was designed to embrace the provisions of two English statutes on this subject, one of which (21 Hen. 8, ch. 7) makes embezzlement of the goods of the master felony, and the other (39 Geo. 3, ch. 85) punishes in the same way the embezzlement of the money or goods of third persons coming to the servant’s possession on account of or to the use of the master or employer. In combining or condensing these two provisions into one the phraseology has been made somewhat awkward, if not obscure, but it is obvious that any other construction than the one adopted in New York would defeat the principal object of the statute. The intent of the section is still apparent, and in borrowing this provision from another code the legislature may be considered as adopting its settled' interpretation.

3. The 5th instruction given for the prosecution was as follows : “ It is not necessary that the 'State should prove by direct and positive evidence that the conversion (if they find that there was any such conversion) was without the consent of the Pacific Railroad Company ; it is sufficient if from the evidence the jury are satisfied that it was without such consent.” It is undoubtedly true that where, in offences like the one charged in this indictment, the prosecution attempts to establish the non-consent of the owner of property, the owner ought in general to be called ; but it is well settled that the testimony of the owner is not exclusively primary evidence of the non-consent. It may be inferred from circumstances attending the transaction. (2 Russ. 737 and cases there cited.) The case of Williams v. East India Co. 3 East, 193, does not conflict with this rule. In that case it became important to establish a notification to the agents of the shipowners of the inflammable character of some goods put on board their vessel by the company; and the company’s agent, whose duty it was to have apprised the ship’s officers of this circumstance, was not called upon the question of notice, and no necessity was shown for resorting to secondary evidence. In the present case it is obvious that the only proof attainable of the non-consent of the Railroad Company must be of a circumstantial character. The president of the company was examined, but neither he nor the treasurer nor any other officer had any authority to consent to such misappropriations of the company’s funds as were charged upon the prisoner. No nearer approach to direct testimony would have been made by calling the treasurer, unless it could be shown that this officer was invested, by the charter or by-laws of the company, with some power to permit appropriations of the funds, such as were sought to be established in this case ; and there was no pretence that any such authority existed.

4. The third count is based upon the 37th section of the act concerning railroad corporations (R. C. 1855, p. 430), and it is alleged that the count is defective in not averring a demand on the part of the company and a refusal to pay over on the part of the defendant. A demand and refusal constitutes no part of the offence, as an examination of the section will show ; they are merely evidence of it. Nor do we suppose that it was the intention of the act to make this the only evidence by which the offence could be proved, for it is not so declared. The evidence of demand and refusal is merely cumulative. The prosecution was not deprived oi any other mode of proof which was legitimate previous to the enactment of this provision. It was therefore unnecessary to aver or prove a demand and refusal.

5. The blank return read in evidence at the trial was objected to on the ground that it was not the best evidence which was in the power of the prosecution, as it did not appear that the defendant had ever seen it or that it had ever been in his possession, and as it did appear that the prosecution was in possession of the blanks which the prisoner had used and filled up. It is insisted that these latter should have been produced. In the case of Rex v. Watson, 2 Stark. 130, where it appeared that a number of placards had been printed, and the prisoner took twenty-five of them away from the printer’s, it was held that one of the remaining placards could be read in evidence without any preparatory proof as to the original manuscript or any notice to the prisoner to produce the copies he had taken. Bayley, Judge, said, that they are all originals — duplicate originals; that one duplicate could be given in evidence without producing the other; that when a .manuscript was printed all the printed copies became originals ; the manuscript (as he expressed it) was discharged; and as they were all from the same press they must all be the same. The printed form used in this case was merely to show the course of business pursued by the defendant and required by the rules of the company in the discharge of his official duties as ticket agent.- The copies of the printed forms containing these rules and returns, which he had filled up and transmitted to his employers, would have been no better evidence of the fact intended to be explained than the copy offered in evidence. They were all originals and proved to be duplicates. (1 Greenl. Ev. § 90.)

6. Conceding that the corpus delicti must be established by proof other than the confessions of the prisoner, we are unable to perceive any ground upon which the verdict of the jury can be complained of by reason of the absence of testi- ' mony on this point.

In cases of embezzlement, the proof of the corpus delicti must of necessity be of a circumstantial character; and the testimony of Phelps, taken in connection with other facts proved, may be considered as very strong, if not conclusive, corroboration of the prisoner’s confessions.

7. In relation to the admission of testimony for the State out of its usual order, the case of Rucker v. Edwards, 7 Mo. 9, is conclusive that this was not a matter of error.

It is unnecessary to refer specifically to each' instruction given or refused in this case. All the points of law arising on them, which have been insisted on here, will be found embraced in what has already been said relative to the testimony and the construction of the statutes on which the indictment was framed. There are other instructions refused, to the refusal of which formal exceptions were taken on the trial, but nothing has been said about them here, and the reason for their refusal will appear upon inspection.

Judgment affirmed;

the other judges concur.


text:
    Ashby, Plaintiff in Error, v. Winston et al., Defendants in Error.
    1. During the pendency of a suit on a promissory note, the plaintiff to secure a note executed by him in favor of one A., executed an instrument in the following form: [After recitals] “I do by these presents transfer, assign and set over to said A. all my right, title, claim and interest in and to said suit, or to such judgment as I may obtain against said W. in said suit, or so much thereof as may be sufficient to satisfy said note first above recited and I do hereby authorize C., my attorney in said suit, or the sheriff of said county, whenever said money shall be collected of said W., to pay over the same to said A. or so much thereof as shall be necessary to satisfy said debt.” Held, that this operated as an equitable assignment of the note sued on and gave to the assignee a right to control the suit; that W., having notice of the assignment, would have no right to compromise the suit without the consent of A.
    2. Where there is a misjoinder of causes of action any defendant may demur to the petition; where, however, there is a joinder of improper parties as defendants, the defendant or defendants improperly joined can alone demur.

      Error to Cole Circuit Court.

    This was an action instituted by Thomas T. Ashby against A. P. Dorris, William Kerr and G. B. Winston. Plaintiff set forth in his petition substantially that Dorris and Kerr, by their promissory note dated July 2, 1855, promised to pay plaintiff $748.22 one day after date; that said note is still due and unpaid; that before and on the 8th day of July, 1855, Dorris had pending a certain suit against Winston founded on two promissory notes, amounting to between $1500 and $1600, executed in favor of said Dorris by Winston ; that Dorris, in order to secure to plaintiff, Ashby, the payment of the above note for $743.22, made and executed to plaintiff a certain instrument of assignment; that by the terms of said deed of assignment said Dorris transferred, assigned and set over to this plaintiff all his right, title, claim and interest in and to said suit, or to such judgment as the said Dorris might obtain against said Winston in said suit, or so much thereof as might be sufficient to pay off and satisfy said note due this plaintiff; that said deed of assignment authorized M. M. Parsons, the then attorney of said Dorris in the suit against Winston, or the sheriff of Cole county, whenever the said money should be collected of said Winston, to pay over the same to this plaintiff, Ashby ; that Winston had full knowledge of this assignment; that plaintiff took the assignment by the advice of said Winston ; that Winston afterwards compromised said suit with Dorris, and paid the money to Dorris and had the suit dismissed without the knowledge or consent of plaintiff and in fraud of his rights ; that Dorris & Kerr are, and were at the time said compromise was made, insolvent. “Plaintiff therefore asks judgment against the said defendants, Dorris, Kerr and Winston, for the amount of said note hereto annexed and interest, and for such other and further relief as he may be entitled to in the premises.”
    Dorris and Kerr answered, admitting their liability on the note, bnt setting up an offset in a small amount. Winston demurred on the grounds that there was a misjoinder of parties defendant; that there was a misjoinder of causes of action ; that the petition does not show a cause of action. This demurrer was sustained.

      Parsons and Adams, for plaintiff in error.
    I. The assignment by Dorris to plaintiff was legal and valid both in law and equity and could be enforced. (Parsons on Contracts, 196 ; Cliitt. on Cont. 628-9 ; Morton v. Naylor, 1 Hill, 583 ; Walker v. Mauro, 18 Mo. 564.)
    II. The petition contains only one object; that is the recovery of the plaintiff’s debts due by Dorris and Kerr, and for which Winston became liable by the assignment, with his advice and consent, by Dorris. Dorris and Kerr being the original debtors to plaintiff, in order to recover against Winston it was essential that they should be made parties in order to determine whether any debt existed with which Winston could be charged. They, as appears from their answers denying the amount of the debt by pleading set-off, had an interest in the controversy adverse to the plaintiff, and were therefore necessary parties to the complete settlement of the controversy. (R. C. 1855, p. 1218, sec. 4; Varrick v. Smith, 5 Paige, 160 ; Story’s Eq. PL 300, 314; Edwards on Parties, 79, 80, 81.) If on the trial it had appeared that Davis and Ken- were not necessary parties, the court had the power then to strike them out and render judgment against Winston.
    III. The court below could not sustain the demurrer on the ground that Winston, the party demurring, was not a necessary party. He was the real party. If Dorris and Kerr were improperly joined, it did not lie in his mouth to demur for them. They waived the question by answering. (R. C. 1855, p. 1231.)
    Morrow, Edwards and Ewing, for defendants in error.
    The petition is multifarious. The cause of action against Winston is different from that against Dorris and Kerr, and can not be joined in the same suit. (Robinson v. Rice, 20 Mo. 229; Alexander v. Warrdull, 17 Mo. 231.) There is no error in rendering judgment on the demurrer as to Winston. (See Lyon v. Page, 21 Mo. 107.) The demurrer ought to have been sustained as to Winston. There was clearly mis-joinders of causes of action and of parties. Dorris and Kerr’s liability was upon direct promise in writing. If Winston is liable at all, which he denies, from the face of the pleading issue is upon an implied promise no way connected with the original promise from Dorris and Kerr to Ashby.
   Richardson, Judge,

delivered the opinion of the court.

The instrument of writing executed by Dorris to the plaintiff operated as an equitable assignment of the notes mentioned in it, and carried with it the right of the plaintiff to control the suit and to take the fruits of the judgment when obtained to the extent of satisfying the debt owing by Dorris and Kerr; and if Winston had notice of the plaintiff’s interest he was bound to treat him as the real owner, and had no right to compromise the suit without the plaintiff’s consent. Only one cause of action is disclosed in the petition. It is alleged that Winston, with full notice and in fraud of the plaintiff’s rights, compromised the suit and paid the money to Dorris; and this allegation, in connection with the averment that Dorris and Kerr are insolvent, makes it appar rent that the real controversy is with Winston.

The prayer for judgment against all the defendants does not determine the character of the action ; for, as the form of the action must be determined by the matter set forth in the petition and not by the name which the plaintiff may give it, so the plaintiff is not limited, where there is a defence, to the relief asked in the petition; but the court may grant any relief consistent with the case made and embraced within the issue. (R. C. 1855, p. 128, sec. 12.)

When several causes of action are improperly united, any defendant may demur; but when the objection arises on the face of the petition that there is a joinder of improper parties as defendants, it can only be raised by the demurrer of the party improperly joined. (Story Eq. Pl. § 237; see Pinckney v. Wallace, 1 Abbot P. R. 82.) Winston and Dorris were proper and necessary parties to the suit, and neither of them therefore could demur for the misjoinder of Kerr.

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


text:
    The State, Respondent, v. Randolph, Appellant.
    1. After a justice of the peace having in charge the examination of a person under arrest upon a charge of crime issues his warrant of commitment and delivers the same to the sheriff, the prisoner can be discharged from custody, on bail or otherwise, only by a court or magistrate authorized by law to issue writs of habeas corpus. Justices of the peace have no power to issue writs of habeas corpus.

    2. The committing justice can not approve a recognizance taken by another justice; nor can a justice', who does not sit at nor assist in the examination, take a recognizance for the appearance of the prisoner.

      Appeal from Callaway Circuit Cowrt.

    This was a proceeding by scire facias upon a forfeited recognizance alleged to have been entered into by Robert D. Randolph as principal, and Robert Randolph as security, conditioned for the appearance of the former at the October term, 1854, of the Callaway circuit court. A demurrer to the scire facias was sustained. The supreme court reversed the judgment on the demurrer. (See 22 Mo. 474.) Robert Randolph, the security, then answered, alleging that after the examination of Robert D. Randolph upon the criminal charge for which he was arrested, the justice of the peace, W. B. Tucker, before whom the examination was had, required bail in the sum of |250, and issued a warrant of commitment and delivered the same to the sheriff; the sum required as bail was endorsed thereon; that after these proceedings, all of which were before said W. B. Tucker, were had, the defendant, the security, signed and acknowledged the bond sued on before a justice of the peace named Hook, who had not acted in the case and was not in any manner connected with the examination and commitment of the accused; that he, defendant, had never acknowledged or bound himself in a recognizance before Tucker in the proceeding mentioned in the scire facias.

    The cause was tried by the court without a jury. The evidence adduced sustained the answer. The court found the facts as follows: “ That Robert Randolph, jr., [Robert D. Randolph] was in the custody of the sheriff during his examination before William B. Tucker, justice of the peace ; that he was to give bail in the sum of $250 ; that - it was then night, and the sheriff held him in his charge until next day, when he presented his recognizance to Esquire Tucker, which was approved; that the security, defendant in this case, did not appear before Esquire Tucker, but that recognizance was sent to him; that he signed and acknowledged it before another justice, and it was then brought to Esquire Tucker for his approval, which he gave, but did not enter his certificate of the fact until some time after, when by permission of the court he did so. On this state of facts the court finds for plaintiff the amount of recognizance, $250.”

      Hardin and H. C. Hayden, for appellant.
    I. After the warrant of commitment had issued and was placed in the hands of the sheriff, no officer could bail the accused or take recognizance except one authorized to issue a writ of habeas corpus, which power is exclusively vested in judges of courts of record. (See R. 0. 1845, p. 862, § 35.) Hook, the justice of the peace, having acquired no jurisdiction in the case, had no authority to take a recognizance. (State v. Randolph, 22 Mo. 480.) In the finding of the court it is said that the prisoner was in custody of the sheriff during his examination before the justice. This is an impropriety in law, for during the examination the prisoner was in court, and after its close the justice issued a warrant of commitment consigning him to the custody of the sheriff. After its issuance and delivery it was beyond the power of the justice to revoke or annul it, or by a verbal command to the sheriff to modify it; his jurisdiction over the case having ceased.

      Ewing, (attorney general,) for the State.
    I. The evidence supports the finding of the court and the finding supports the judgment. (Conrad v. Bennett, 22 Mo. 166.) The endorsement by the justice, before whom the examination was had, of his approval of the recognizance was not necessary to its validity. The omission to enter certificate of approval at the time was at most but an irregularity; if any thing more, it was cured by the subsequent endorsement of the justice mwnc pro tunc by permission of the court. If the act of Justice Hook was a nullity, it could not affect the recognizance. The warrant of commitment was to have no effect until after the time allowed the prisoner to give his recognizance had expired. The justice, Tucker, complied with his duty in taking the recognizance and certifying it to the circuit court.
   Richardson, Judge,

delivered the opinion of the court.

It is a settled principle that a recognizance, to be valid, must be taken by a competent court or officer, under circumstances warranted by law, “ and for the performance of some act that the law allows to be secured in that way, and in the form prescribed for that purpose.” (22 Mo. 478.)

After the justice had issued his warrant of commitment and delivered it to the sheriff, his authority over the subject was exhausted, and the prisoner could only be discharged from custody, on bail or otherwise, by a court or magistrate authorized by law to issue a writ of habeas corpus (R. C. 1845, p. 862, § 85) ; and justices of the peace have no authority to issue the writ of habeas corpus. (R. C. 1845, p. 556, sec. 2.) The party bound must appear before the officer who takes his recognizance, and the committing magistrate can not approve a recognizance taken by another officer.

The justice then who took the recognizance had no authority for that purpose, because he had not tried or assisted in the trial of the case, and he could not issue a writ of habeas corpus, and the justice who tried the case had no authority over the subject, because he had committed the prisoner, and the parties bound did not appear before him.

In our opinion the recognizance was void, and all the judges concurring, the judgment will be reversed.


text:
    Reed, Defendant in Error, v. Bell et al., Plaintiffs in Error.
    1. To maintain an action of forcible detainer the plaintiff must be entitled to the possession of the premises in controversy.

      2. Where a tenant invites and consents to the entry of a person upon the premises occupied, such entry is not “ wrongful, without force, by disseisin,” as against the landlord, within the second clause of section third of the act concerning forcible entry and detainer

      Error to Callaway Circuit Court.

    This was an action of forcible detainer. Plaintiff stated in her complaint that on the first day of March, 1856, she was entitled to the possession of a certain tract of land [describing it] “ and the house and appurtenances thereto belonging; and that Andrew K. Bell and James Bell wrongfully and without force, by entering into and upon said premises then held by complainant’s tenant, obtained, and continue in, possession of said premises after demand,” &c.
    The cause was tried by the court without a jury. It appeared from the testimony of one Evans, that he was in possession of the premises described in the petition, and proposed that the defendants should come and live in the house, there being a vacant room not wanted for the use of his own family. This proposition was accepted. Demand of premises was admitted. It was also in evidence that plaintiff had tendered to Bell a “ lease bond” “ which he refused to sign, stating that he had come into possession of the land by the consent and permission of Evans, though he had acknowledged plaintiff’s right of possession, and had intended to take a lease bond from her.” The defendants moved the court to declare the law as follows: “ If from the evidence in the cause it appears that the defendants came into possession of the premises mentioned in the complaint with the consent of the tenant of Winifred Reed, then they did not come into the same wrongfully and without force and by disseisin, and are not liable in this action.” The court refused to declare the law, and gave judgment in favor of the plaintiff.

      H. C. Hayden, for plaintiffs in error.
    I. To maintain an action of forcible detainer the plaintiff must be entitled to the possession. Reed’s tenant was in possession of the premises, and he gave permission to the Bells to occupy a vacant room. The entry was not wrongful, without force and by disseisin as against the plaintiff; certainly not against the tenant. Not a solitary fact alleged in the complaint was proved at the trial.

      Hardin, for defendant in error.
    I. The complaint is sufficient. (R. C. 1855, p. 788, § 6.) Plaintiff was in possession by her tenant. The instruction asked by defendant was properly refused. (See 1 Black. 157.)
   Richardson, Judge,

delivered the opinion of the court.

The third section of the first article of the act concerning forcible entry and detainer declares, that any person shall be deemed guilty of an unlawful detainer who shall either “ wil-fully and without force hold over any lands, tenements or other possessions after the termination of the time for which they were demised or let to him or the person under whom he claims,” or wrongfully and without force by disseisin obtain and continue in possession of any lands, &c, after demand made in writing for the deliverance of the possession thereof.

It is manifest that the plaintiff intended to proceed under the first clause of this section, and her counsel has assumed in his argument that the defendants came into possession under Evans, who was the plaintiff’s tenant, and held over without the plaintiff’s consent after the termination of the time for which the premises were let to Evans. On this hypothesis the judgment ought to stand ; but there is no evidence that Evan’s term had expired. To maintain the action of unlawful detainer, the plaintiff must be entitled to the possession, and he can not recover for an intrusion on the possession of his tenant. The evidence proved that the defendants came into possession at the invitation and with the consent of the plaintiff’s tenant, and they were not then guilty under the second clause of the section. The instruction asked by the defendants ought to have been given.

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