text:
    Hockaday, Defendant in Error, v. Sallee, Garnishee, Plaintiff in Error.
    1. The act of March 5, 1849, (Sess. Acts, 1849, p. 67,) exempting certain prop.-erty of 'wives from certain debts of their husbands, is not applicable where such debts were contracted before the passage of the act.
    2. A promissory note assigned to a wife is subject to attachment for the debt of the husband.

      Error to Callaway Circuit Court.

    Hockaday obtained a judgment before a justice of the peace against Sandford Jamison in January, 1857, on a promissory note due in July, 1847. An execution issued and John Sallee was summoned as garnishee. On the trial in the circuit court of the issues raised in this garnishment proceeding, it appeared that Sallee, the garnishee, had executed a note for $500 in favor of T. B. Harris, which note was assigned by Harris to Mrs. Jamison, the wife of the defendant in the execution.

      Jones and Hayden, for plaintiff in error.
    I. Only a debtor of the defendant in the execution is subject to garnishment on an execution issued by a justice of the peace. (R. 0. 1855, p. 965, § 11.) The note assigned to Mrs. Jamison could not be subjected to the payment of her husband’s debts contracted before the acquisition of the property. If Mrs. Jamison was the sole owner of the property put into the partnership, being solely interested in the note, it could not be applied to the payment of her husband’s debts. If she was interested in the partnership jointly with her husband in proportion to the respective amounts put in by each, the interest of neither being ascertained, the note was not subject to garnishment.
    II. There is no provision in the law relating to executions from justices’ courts by which Mrs. Jamison could interplead and claim the note as her property. Not being a party to the suit, she would not be bound by the judgment. She could institute suit against the garnishee and coerce the payment of the debt a second time. (16 Mo. 252.) There was no evidence sufficient to warrant the verdict' for plaintiff. The answer of the garnishee is to be taken as true until disproved by two witnesses, or by one witness and strong corroborating circumstances. (Davis v. Knapp, 8 Mo. 657 ; 9 Mo. 640 ; 10 Mo. 104; 12 Mo. 76.)
    Hardin, for defendant in error.
    I. The debt on which Hockaday obtained judgment against Jamison was contracted before the passage of the act of March 5, 1849. (See Cunningham v. Gray, 20 Mo. 170; Tully v. Thompson, 20 Mo., 277.) The rules of evidence as well as the form of verdict are' the same in trials of issues with garnishees as in ordinary cases. (R. C. 1855, p. 965, §11; p. 269, § 32.)
   Richardson, Judge,

delivered the opinion of the court.

.The questions to be considered, in this case are unaffected by the apt of March 5, 1849, for the benefit of married women, because the debt on which the judgment was rendered was incurred before the passage of the act. (Cunningham v. Gray, 20 Mo. 170; Tally v. Thompson, id. 277.)

The note executed by the garnishee and assigned to Mrs. Jamison during her coverture must be treated in all respects as if it had been made payable directly to her ; and in reference to the power of the husband over the wife’s dioses in action, it may be observed that there is a difference between such as accrue before and after marriage. At common law a note executed to the wife during coverture becomes the absolute property of the husband, but subject to her right of survivorship in the event of his death before he reduces it to his possession. He may sue on it without joining her in the action; (Chitt. Plead. 33;) he can transfer it by his simple endorsement and thus defeat her interest; (1 Bright, Husb. & Wife, 38;) or he may release it; (Shep. Touch. 333;) and a general assignment in bankruptcy by the husband will carry the wife’s chose in action to the assignee, though subject to her right of survivorship if the husband dies before the assignees reduce it to their possession; for they acquire only the right which the husband had before the bankruptcy. (2 Kent, 135.) While living he has the absolute control over it and, with the power of converting it at any time, may appropriate the proceeds to his own use. His creditors may secure this right by garnishment or attachment on execution, which will operate as a statutory assignment of the husband’s interest; but as the garnishment only creates a lien, the creditor will obtain no better right than the husband had, and the wife’s right of survivorship will not be defeated if the husband dies before judgment. (Shuttleworth v. Noyes, 8 Mass. 229; Commonwealth v. Manley, 12 Pick. 176; Holbrook v. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 567; Strong v. Smith, 1 Metc. 476.)

The note, then, assigned to Mrs. Jamison becamjj attachment for her husband’s debts independent oifany quesP* tion of fraud or resulting trust, and this view cStJ renders it unnecessary for us to consider the exception taken' to the admissibility of testimony.

The court properly directed the jury in the first instruction given for the plaintiff as to the form of the verdict, and the verdict being in accordance with the instruction is in proper form. The other judges concurring, the judgment will be affirmed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Suggett’s Administrator, Defendant in Error, v. Cason’s Administrator, Plaintiff in Error.
    1. Where there is only an agreement to sell a slave and not a sale executed, an action for the possession can not be maintained; the remedy is an action for damages arising from the breach of the contract.
    2. Agreements that may be performed within a year from the making thereof are not within the statute of frauds.
    3. Where an agreement not in writing has been wholly performed on one side, the other party thereto can not interpose the defence of the statute of frauds.

      Error to Callaway Circuit Court.

    This was an action for the possession of a negro slave named Jim. The plaintiff, Jno. S. Suggett, alleged in his petition that in the month of January, 1846, he made a verbal contract with Larkin Cason, defendant’s intestate, of the following effect: that he, plaintiff, should repair a certain log house belonging to Cason, and make certain additions thereto ; that in consideration thereof Cason agreed to give and deliver to plaintiff a certain slave named Jim; that he, plaintiff, did in pursuance of the contract execute the repairs and make the additions required; that the work was done according to contract; that “ said contract was completed some time about the first day of September, 1849, and that the said Cason thereupon accepted the house and every department as completed in accordance with the contract, and took full possession of the same that said Cason did not deliver said slave Jim to plaintiff, &c. The plaintiff prayed for judgment for the possession of the slave and for damages for his detention.
    The court, at the instance of the plaintiff, instructed the jury as follows : “ If Cason agreed in his lifetime with plaintiff that he should have the slave Jim for the doing of the work as specified in the petition, and the plaintiff did the work accordingly, and after the doing of the work it was consented between the plaintiff and Cason that the slave Jim was the property of the plaintiff under the contract aforesaid, and the slave Jim, upon the death of Cason, passed into the hands of Cason’s administrators, and the plaintiff afterwards demanded him of the administrators, and they refused to deliver him up, the jury ought to find a verdict for the plaintiff for the slave Jim, and allow him a reasonable compensation for his hire from the time of the demand to the present time; and it is the duty of the jury also to find the present value of the slave. 2. Writing is not necessary to pass the title to a slave but the property in a slave will pass without any bill of sale or other writing, when such is the intention of the parties and there is a valuable consideration paid.”

      The following instructions, among others asked by the defendant, were refused: “ 1. Although the jury shall find from the evidence that the said Larkin Cason agreed to let the plaintiff have the boy Jim for doing the work so mentioned in the petition, and that the plaintiff did perform the work, &c., for said Cason according to his part of the contract, yet before the jury can find that the plaintiff is the owner of the slave, it devolves upon him to prove to their satisfaction that the said Cason delivered or surrendered the possession of the slave to the plaintiff before they can find that the plaintiff is the owner of the slave as charged. 2. Even if the jury find that the plaintiff became entitled to the slave Jim for the work, &c., mentioned in the petition, still the jury can not find for the plaintiff in this action for the recovery of Jim.”.'
    The jury found for plaintiff.

      J. F. Jones, for plaintiff in error.
    I. The plaintiff could not recover the specific property sued for. The evidence shows clearly that the title to the slave had not vested in him. There was no sale in contemplation of law. The only remedy was by action sounding in damages. There was no delivery.
    II. This was a suit for the possession of the slave. Being such, plaintiff was not entitled to recover damages ; he could only recover the value of the services of the slave. (King v. Brown, 2 Hill, 485.) The court erred in refusing the instructions asked by defendant. (See Smith on Contracts, p. 67, 70; 3 Pick. 94; 3 Hill, 128; 2 Denio, 87; Story on Cont. § 787; Cunningham v. Ashbrook, 20 Mo. 556 ; Story on Sales, §232-9.)
    Hardin, for defendant in error.
    I. The plaintiff can in this action recover the specific property and damages for the detention. (3 Wooddeson’s Lectures, 35; 3 Black. Com. 122; 1 Wheat. Selwyn, 664.) There is a sufficient delivery where it clearly appears to be the intention of the parties that the property should be deemed to be delivered and the title to have passed, especially if the acts of the parties be inconsistent with any other view. (Story on Sales, § 298.)
    II. This case is not within the statute of frauds. (26 Maine, 341, 397.) It .is not a contract of sale. (21 Pick. 205 ; Long on Sales, 1.) If it be within the statute, its requirements were complied with. Labor was rendered in a reasonable time after the contract was made to bind the contract. (13 Maine, 424 ; 11 Johns. 283 ; 1 Fairf. 31.) If a party desires to claim the benefit of the statute of frauds, he must either deny the contract, or admit it and set up the statute. (Wildham v. Robideaux, 11 Mo. 660; Hook v. Turner, 22 Mo. 333.)
   Scott, Judge,

delivered the opinion of the court.

The difficulty we encounter in supporting the judgment of the court below is in the petition of the plaintiff, its want of conformity to the proof, and the instructions given. The action was tried on the theory that there was a sale of the slave by Cason to Suggett. There is evidence in the record tending to support this view of the transaction, on which, if a verdict had been found for the plaintiff, no court would have disturbed it. But to our minds the petition sets out only an agreement to sell the slave at a future day, and for a violation of this agreement the plaintiff was only entitled to damages for the non-delivery of the slave at the stipulated time, and not to the slave himself or his equivalent value. There is no averment in the petition that the slave was actually sold to Suggett, whereby the property would have been changed. Had an actual sale been alleged, the evidence of the fact ought to have been submitted to the jury, and a verdict in affirmance of that view of the subject should not have been disturbed. The petition alleging only a contract to sell, those instructions asked by the defendant, founded on that view of the transaction, should have been given, and that instruction, given for the plaintiff on the hypothesis that there was a sale, should have been refused.

As the case appears to us, there is no doubt of the right of the plaintiff to recover; and, as it now stands on the petition, the measure of his damages should be the value of the slave at the time he should have been delivered; on which value the jury may allow interest.

We do not regard the statute of frauds as interposing any obstacle to the plaintiff’s right of recovery. As to the objection, arising under the statute, that the contract was not performed within a year, it is now well settled that the statute only applies to those contracts which by their terms are not to be performed within one year. If the contract is such as that it may by its terms be performed within a year, the statute does not apply. In the case before us there was no time limited within which the work was to be performed. It might have been done immediately; consequently the contract was not affected by this provision of the statute. (Foster v. McO’Blenis & Matthews, 18 Mo. 88.)

As to the other objection arising under the statute, that there was no note or memorandum of the contract of sale, it may be answered that the contract having been entirely per-, formed on one side, the other side can not interpose the de-fence arising under this section. (Holbrook v. Armstrong, 1 Fairf. 31; Long on Sales, 56; Donaldson v. Reed, 3 B. & A. 899.) There is some conflict of opinion on this question; but it seems to us the weight of authority and reason is in support of the proposition, that if goods are sold and delivered, at a longer credit than one year, without writing, the delivery of the goods being an execution of the contract on one part, the vendee should be bound by the agreement.

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


text:
    The State, to use of Buchanan County, Plaintiff in Error, v. Smith et al., Defendants in Error.
    1. Where a county collector — who serves two successive terms with two different sets of securities on his official bonds — in making payments during his second term into the county treasury, appropriates and applies such payments, although made out of the revenue of the second term, to the extin-guishment of liabilities incurred by him during his first official term, the misappropriation will be binding on the securities in the second bond, if the county treasurer receives the money in good faith.'
    2. So also where, although the collector makes no appropriation, the treasurer in good faith applies the payments to the extinguishment of the liabilities of the first term.
    3. Where the law makes the appropriation in such cases, it will, as between the different sets of securities, appropriate the revenues of each official term to the satisfaction of the liabilities incurred during that term.
    4. It will not be presumed, as a matter of law, that all payments made by the collector into the treasury after the second term commences are made on account of the revenue of the second term; he may make payments before he becomes chargeable with any sums received from the revenue of the second term.
    5. Settlements made with the county court by the county collector are only prima facie evidence of liability on the part of his securities.

      Error to Buchanan Court of Common Pleas.

    This was an action upon the official bond of Joseph B. Smith, as collector of Buchanan county, Missouri, for the two years commencing September 1st, 1854, and ending September 1,1856. The bond was dated August 16,1854, and contains the condition required by statute in such case. The breaches assigned are that said Smith, as collector, collected of the revenue of said county for the two years following the 1st of September, 1854, $9367.08 more than he paid into the treasury of the county or otherwise accounted for ; that during said two years he collected of the revenue of said county the sum of $28,699.69, and that of this sum he had at various times paid into the county treasury or otherwise legally accounted for various sums, amounting in the aggregate to the sum of $19,382.61, and that for the residue — $9,367.08— he has failed to account or pay; that at a special term of the county cotirt held in December, 1855, said Smith made with the court a final settlement for all moneys collected by him on account of the revenue for the year ensuing September 1, 1854; that on said settlement there was found a balance due the county, on account of said revenue, amounting to the sum of $3,182.50, which the said Smith failed to pay or account for; that at a special term of the county court held in December, 1856, said Smith made with said court a final settlement for the revenue of said county for the year ensuing the 1st of September, 1855 ; that on such settlement there was found to be a balance against said Smith — including the balance, $3,182.50, due on the settlement for the preceding year — of $11,424.05 ; that of this sum he has paid and accounted for the sum of $2,056.97, and has failed to pay or account for the balance — $9,367.08.
    Smith, the collector, made no defence. The other defendants answered, admitting the execution of the bond sued on, and alleging that they were only the securities of said Smith thereon. They negatived the first and second breaches; they admitted that Smith made the settlements alleged, but denied that the settlements were conclusive and binding upon them, alleging that they were in fraud of their rights, as securities; that said Smith had been collector for the two years immediately preceding September 1, 1854, with a different set of securities upon his first official bond; that at the close of his first term he was in default in a large amount; that a large amount of money collected from the revenues of the two years of the second term were paid into the treasury and applied fraudulently as against these defendants to the extin-guishment of the liabilities of the collector and securities upon the first official bond.
    At the trial the plaintiff gave in evidence the settlements made by Smith as collector in December, 1855, and in December, 1856, and rested.
    Evidence was then introduced by defendants showing various payments into the county treasury, made by Smith as collector, after September 1st, 1854, and which were not embraced in the settlements for the years 1854 and 1855, The plaintiff objected to the introduction of this evidence on the ground that there was no evidence tending to prove that they were made out of moneys accruing and collected on the revenue arising after the 1st of September, 1854. The objection was overruled.
    The court gave the following instructions at the instance of the defendants : “ That the annual settlements made by Smith in December, 1855 and 1856, of the county revenue for 1854 and 1855, are not conclusive upon these defendants, who are his securities, but may be shown to be incorrect, false and fraudulent. 3. That all payments made by Smith into the county treasury after he became chargeable with the revenue of Buchanan county for the year 1854, and received the tax book for that year, and collected licenses for said year, as well as revenue on said tax book, will be presumed, in absence of proof to the contrary, to be made in the extin-guishment of the liabilities of said year, to an amount equal to the amount of revenue shown to bo collected up to said payments. 5. If the jury believe from the evidence that said Smith collected any sums of money out of and belonging to the county revenue of Buchanan county for the year 1854, and duly paid the same into the county treasury of said county, which said payments so made were omitted by said Smith by accident or mistake or fraud from the settlement of said revenue, made December, 1855, and not embraced or included in any other settlement made by said Smith and in evidence, then they will allow in this action credits for all such payments so made. 6. If the jury believe from the evidence that said Smith had fully accounted for all the revenue of Buchanan county for the two years next ensuing the 1st day of September, 1854, to-wit, for the years 1854 and 1855, they will find for defendants. 8. The jury will allow defendants credits as commissions, on all county revenue of 1854 and 1855 so paid into the treasury, the sum of two per cent, on all moneys arising from licenses, seven per cent, for the first $1000, five per cent, on the next $1000, four per cent, on the next $1000, and three per cent, on the balance. 10. That plaintiff can not recover in this action for revenue not collected by said Smith of 1854 and 1855 of said county.”
    The court refused the following instructions asked by plaintiff: “1. That the settlements read in evidence to the jury are conclusive evidence of the amount that said Joseph B. Smith was indebted to the county of Buchanan on account of the revenue and as collector thereof at the time said settlements were made ; that all the defendants are bound and concluded in this suit by said settlements ; and the jury will find a verdict for the plaintiffs and assess the damages at the balance due on such settlements after deducting therefrom the payments made since the time said settlements were made. 2. If the jury believe from the evidence that the defendant, Joseph B. Smith, as collector of Buchanan county, made a settlement with the county court of Buchanan county for the revenue and on account thereof for the two years next ensuing the 1st of September, 1854, and on such settlement admitted that he was indebted to said county on account of said revenue in the sum of $11,624.05, such admission is evidence against the other defendants and they are bound by it. 8. The jury will exclude from their consideration all evidence tending to prove payments into the treasury on account of the revenue for the two years next ensuing the 1st of September, 1854, and which were made prior to the 7th of January, 1857. 4. The jury will exclude from their consideration the treasurer’s receipts read in evidence, dated November 7,1854, for $1,386.82: the one dated November 11,1854, for $936.04; the one dated December 1st, 1854, for $971.59, and the one dated December 16, 1854, for $1,500.”
    The plaintiff then took a nonsuit with leave to move to set the same aside.

      Loan, for plaintiff in error.
    I. The principle settled by the New York'and federal courts, and adopted by this court in the case of Draffen v. City of Boonville, 8 Mo. 399, is, that payments into the treasury of moneys accruing and received during an official term are applied to tlie extinguishment of liabilities of that term. It is a misapplication of the principle to adopt the broad rule that all moneys paid into the treasury, as in this case, by the collector, after the date of the bond sued on, or even after liabilities thereunder are incurred, shall, in the absence of proof, be presumed to be made in discharge of liabilities incurred under said bond. The items of the settlements made in November and December, 1854, were irrelevant and incompetent unless it was also shown that said licenses composed part of the revenue for the time covered by the bond sued on. So of the payments on November 11, 1854, on December 1, 1854, and of the receipt of the treasurer dated November 7, 1854, unless it had been shown that said payments were of moneys derived from the revenue accruing under and secured by the bond sued on, or that such payments were appropriated to the payment of such liabilities. The law in cases like the present applies the payment to the fund from which the money was derived; and the party relying upon the payment must not only prove it, but also the source whence it accrued. Mere proof of payment is insufficient when the pleadings, as in this case, show a liability existing for two successive terms. Nor is the matter cured by the rebutting testimony afterwards introduced by the plaintiff showing, from Smith’s settlement with the county court at the December term, 1854, for the revenue of 1852 and ’53, that said licenses and payments were of the revenue of those years, and that he had appropriated said payments thereon and received credit therefor on such settlement.
    II. The court erred in giving and refusing instructions. The settlements made by Smith with the county were conclusive upon him and his securities. (Jones v. The State, 14 Ark. 170 ; Grant County v. Bartlett, 5 B. Monr. 195 ; Price v. Johnson, 15 Mo. 433 ; Blair v. Perpetual Ins. Co. 10 Mo. 10 Mo. 507.)

      A. H. Vories, for defendants in error.

      I. The settlements made by Smith were not conclusive as against the sureties. (See 11 Mo. 447.) Defendant’s instructions are right. (Nolly v. Callaway County Court, 11 Mo. 447; Draffen y. Boonville, 8 Mo. 895 ; United States v. Eckford Exee’x, 1 How. 263 ; 7 Crancli, 572.)
   Scott, Judge,

delivered the opinion of the court.

It docs not appear very clearly that the doctrine in relation to the application of payments when two sets of sureties are concerned has any bearing on this case. If the collector, at the time he made the payments gave directions, as tó the manner in which they were to be applied, those directions will prevail unless the county treasurer was aware that the moneys received ought not to have been applied as directed. It would not be just that a party should receive money and knowingly apply it to a purpose which would operate as a wrong to others. If a collector of the revenue meets his creditor and with the public money pays him his debt, who is ignorant as to the source whence the money came, the debt is discharged, and the creditor can not be made to refund. But if the creditor, knowing that the money does not belong to his debtor, nevertheless prevails on him to discharge his debt, he is guilty of a fraud and may be compelled to restore the money received to the true owner. So when there is an account against a collector, and he settles it, without any knowledge on the part of the officer receiving the money that it was not applicable to that purpose, the payment will be good, and no one can disturb it. (Inhabitants of Colerain v. Bell, 9 Metc. p. —.) If the collector made an appropriation of the money received, by the treasurer, to the extinguishment of the indebtedness under the first bond, and the money received was due and collected under the last term, yet if the officer who received the payments was ignorant of the fact, and took the money in good faith, the transaction is a valid one; the debt is discharged and the securities for the term during which the money was due and collected are liable for its misapplication. Although the law, when it falls to its lot to appropriate payments, will not suffer the revenue received under one term to be applied to the satisfaction of a defalcation incurred under another term, when there is a different set of securities for each term; yet if the officer himself will make the misappropriation, and the money is received in good faith by the party to whom the officer is indebted, such misappropriation can not be avoided and it will be binding on the sureties for the term during which it was collected.

Although there may have been no application of the payment when made, yet the law, in making the application between two sets of sureties, will not presume that all the revenue received after the date of the last bond was received in discharge of the liability incurred by reason of such bond, and inflexibly appropriate it accordingly. At the expiration of the first term an officer may be indebted under the bond of that term. The day after, he gives a bond for a second term with different securities. Before he has time to collect any money due for the last term, before he becomes chargeable under it for any sum, he makes a payment into the treasury without directions as to the manner in which it shall be applied. Now it would be unjust to the securities on the first bond to apply this money to the relief of the sureties on the second bond. The circumstances under which a payment is made may show the year for which the money was received with which the payment was made. If, after an officer is properly chargeable with money for a term, he makes a payment, it may be presumed that it was on account of the indebtedness for that term ; yet it may be shown to be otherwise, and the circumstances under which it was made may indicate the source whence the money was obtained.

The law is, that if the debtor does not make the application of the payment, the creditor may. If it is shown that the creditor has made application of the payment in good faith towards the extinguishment of the prior indebtedness, the sureties on the last bond will be bound by such application. It is only when the law makes the application of the payments that the second set of securities is entitled to tlie sums that may be shown to have been received under their bond, giving them the benefit of the presumption to which reference has been made as to the time of the receipt of the money. (Seymour v. Vayslyck, 8 Wend. 420.)

The facts are not stated with sufficient precision to enable us to determine whether there was a right in the collector to make an application of the payments at the time of the respective settlements under the first bond, in the event it should turn out that -no application was made by him or the county at the time the money was paid into the treasury. (U. States v. Kirkpatrick, 9 Wheat. 737.)

The settlements made by a collector are only prima facie evidence against his securities. (Nolly v. Callaway County, 11 Mo. 447; U. States v. Eckford’s Ex’s, 1 How. 256.) But, although the sureties, may show the incorrectness of the settlement, or any errors or omissions in them, or in the previous settlements when their balance has been carried into the subsequent settlements, yet they will not be permitted to disturb the applications of payments made in good faith.

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


text:
    City of St. Joseph, Plaintiffs in Error, v. Merlatt et al., Defendant in Error.
    1. Where a collector serves for two successive terms and is sued on his second official bond, it will not he presumed, as a matter of law, in the absence of proof, that all payments made by him into the treasury during the second fiscal year are made out of moneys collected by him from the revenue of that year and in extinguishment of his liabilities as collector incurred during that year.

      Error to Buchanan Court of Common Pleas.

    This was an action on the official bond of George Merlatt as collector of the revenue of the city of St. Joseph for the fiscal year 1855. The plaintiffs; are the mayor and council-mcn of the city of St. Joseph. The bond sued on is dated April 11, 1855. The fiscal year commenced April 11, 1855, the second Monday of April. Meriatt was collector for the year 1854. The securities on the bond for this year were persons other than the securities on the bond for 1855. The defendants pleaded payment in full of all sums received during the second official term. Evidence was given of various payments into the treasury during the second official term— one payment, amounting to $ 1,511.49, being made on the 12th day of April, 1855, the day immediately succeeding .the execution of the second bond. The following instructions were given to the jury at the instance of defendants: “ 1. That all payments, made by Meriatt as collector during the fiscal year of 1855 to the treasury of the city, will be^ presumed in the absence of proof to the contrary to be made in the extinguishment of the liabilities of that year. 2. That payments made by the collector, as stated, during the fiscal year, 1855, will be presumed to be made out of moneys collected by him during that year for the city out of the various sources of revenue for that year, unless the contrary is shown by the plaintiff.”
    Other instructions were given and refused. It is deemed unnecessary to set them forth. The jury rendered a verdict for plaintiff for $1,540.42. The plaintiff brings the cause to this court by wi'it of error.
    Loan, for plaintiffs in error.

      Vories, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

The opinion in the case of the State, to the use of Buchanan County, v. J. B. Smith and others, (ante p. 226,) will enable the court to determine the questions of law arising in this suit.

The first and second instructions given for the defendants were, under the circumstances, clearly erroneous. These instructions were to the effect that payments made by a collector during a fiscal year will be presumed to have been paid out of moneys collected for that year. They were directly against the case of Draffen v. City of Boonville, 8 Mo. 395.

There was no case made in the pleadings for the recovery by the defendant of any excess of revenue overpaid for the year 1855. The other judges concurring, the judgment will be reversed and the cause remanded.


text:
    Schmidt, Defendant in Error, v. Schmidt, Plaintiff in Error.
    1. The fact that a decree of divorce was rendered in hehalf of the plaintiff upon a finding of the facts which omitted to state that the plaintiff was an innocent and injured party — both parties appearing to the suit — does not render the decree invalid.
    2. An allowance of alimony may he made although no evidence may have been adduced showing the income of the husband.
    3. The court may award alimony payable in quarterly instalments, and may authorize the clerk, on a failure to pay any one of such instalments, to issue execution therefor.

      Error to Buchanan Court of Common Pleas.

    This was a suit for divorce by Henrietta E. Schmidt against Herman P. Schmidt. The cause was tried by the court. The court rendered a decree in favor of plaintiff. In the finding of the facts made by the court it is not stated that plaintiff was the innocent and injured party. It appears from the finding that “ there was no evidence introduced showing the annual income of the party belonging to defendant.” The court found that he had property worth about $1100. The court gave plaintiff the custody of her child and allowed her $150 for her support for one year, payable in quarterly instalments ; and further ordered that, if defendant should fail to pay such allowances when due, the clerk of the court should, upon application of plaintiff, issue an execution against his lands, goods and effects.

      A. H. Vories, for plaintiff in error.
    I. The finding is defective and insufficient. There is nothing said as to the plaintiff being the innocent and injured party. There was no evidence before the court as to the income of defendant. How then could the court fix any amount as alimony ? The court could not make an order authorizing the clerk to issue execution in vacation on the application of the plaintiff. Admitting the decree of divorce to be good, the order with respect to alimony is erroneous.

      Loan, for defendant in error,
    cited 4 Johns. Ch. 796; Pratt v. Pratt, 9 How. 37.
   Scott, Judge,

delivered the opinion of the court.

There is nothing in the objection to the decree that the court failed to find the plaintiff to be the injured and innocent party, as the statute only makes that necessary when the proceeding is ex parte. As both parties appeared to the suit, the provision of the statute to which reference has been made is not applicable.

We do not see the point of the objection to that part of the decree allowing alimony. All that portion of the decree which relates to the subject of alimony, is subject to the future control of the court. In the allowance of alimony the court is not restricted to the income of the husband. There is nothing in the law which restricts the allowance of alimony to a portion of the husband’s income. Such a principle, in many instances, would deprive the wife of alimony. When there is an income it may furnish a guide to the discretion in ascertaining the amount of alimony to be allowed to the wife.

As to the authority granted to the clerk to issue execution for the instalments as they become due, we see no objection to it, as the instalments are payable quarterly, and the court sits but semi-annually. We do not see how otherwise the payment of the alimony could be enforced. It is in the power of the party to avoid all inconvenience by prompt payment of the instalments as they become due. Moreover, the court can control its process. If it should not be in session, yet, under the general execution law, the judge in vacation may control an execution irregularly or improperly issued. The court also may make such alterations in the decree relating to alimony as may be proper. If, in the execution of the order touching alimony, any thing harsh or oppressive to the husband occurs, the court has authority and it would be its duty to remove the cause of it by an amendment of the order. The other judges concurring, the judgment will be affirmed.


author: Richardson, Judge,

text:
    Hockensmith & wife, Plaintiffs in Error, v. Slusher et al., Defendants in Error.
    1. A bequest to a son-in-law, though he is not designated as such, is a naming of the daughter within section 11 of the act concerning wills. (B. C. 1845, p. 1080.)

      jError to Clay Circuit Court.

    This was a suit for partition of real estate that had formerly belonged to Christopher Slusher, deceased. The plaintiffs are William H. Hoekensmith and Susannah Hoekensmith his wife, a daughter of said Slusher. Plaintiffs asserted an interest in said real estate on the ground that said Slusher had died intestate as to said Susannah Hoekensmith, not having named or provided for her in a will executed by him and by which the lands in controversy were devised. The court found the facts as follows : “ That Christopher Slusher by his last will and testament read in evidence, dated May 16,1858, and admitted to probate on the 26th day of December, 1853, made a bequest to Harrison Hoekensmith of one thousand dollars in the following -form: I give and bequeath to Harrison Hoekensmith the sum of one thousand dollars that the plaintiff, William H. Hoekensmith, is the Harrison Hoek-ensmith mentioned in the said last will and testament; that the plaintiff, Susannah Hoekensmith, is and was at the date of said last will and testament the wife of the said William H. Hoekensmith, and known to be such by the said Christopher Slusher, and daughter of said Christopher Slusher, deceased ; that the said William H. Hoekensmith on the 13th day of May, 1856, received from the executors of the said last will and testament of the said Christopher Slusher, the bequest of one thousand dollars, and gave them the receipt for the same read in evidence. And the court draws the conclusion of law upon the facts aforesaid that the Christopher Slusher, deceased, did not die intestate as to his said daughter Susannah Hoekensmith, and can not be so deemed ; and that said plaintiffs have not, nor has either of them, any right, title or interest in the land in controversy.”

      Sheley, for plaintiffs in error.
    I. Christopher Slusher, having failed to name or make provision for plaintiff, Susannah Hoekensmith, in his will, died intestate as to her. The devise to Harrison Hoekensmith was no provision for Susannah Hoekensmith. (R. C. 1845, p. 1080 ; Gage v. Gage, 9 Foster, 542 ; 18 Pick. 166.)
    II. The court erred in permitting testimony to be given tending to show that “ Harrison Hoekensmith” is the plaintiff William H. Hoekensmith, the son-in-law of Christopher Slusher and the husband of Susannah Hoekensmith. (Stephens ,v. Walker, 8 B. Monr. 601; 14 Johns. 9 ; Bradley v. Bradley, 24 Mo. 311; Goode v. Goode, 22 Mo. 522; 9 Maryl. 346.)
    III. The receipt of W. H. Hoekensmith was incompetent evidence. Admissions of the husband are not permitted to affect the title of the wife.

      Ryland, Troxell and King, for defendants in error.
    I. The receipt was admissible in evidence. The evidence was admissible, tending to show that William H. Hocken-smith was known and called by Slusher and others by the name of “ Harrison Hockensmith.”
    II. The testator by naming the husband of his daughter thereby sufficiently indicated that said daughter was in his mind at the time he made the will. She was not, therefore, unintentionally omitted. (Long v. Foster, 1 Mass. 146 ; Wild v. Brewer, 2 Mass. 570 ; Church v. Crocker, 3 Mass. 17 ; Wild y. Goss, 14 Mass. 356 ; Merrill v. Sanburne, 2 N. H. 499 ; Wilson v. Fosket, 6 Mete. 400; Block v. Block, 3 Mo. 594 ; Guitar v. Gordon, 17 Mo. 408 ; 9 Conn. 209; 10 Wend. 338; 9 Pick. 176 ; 1 Barb. 155 ; 28-Mo. 316.)
   Richardson, Judge,

delivered the opinion of the court.

The main inquiry in this case is, whether Christopher Slusher died intestate as to his daughter Mrs. Hockensmith, which will be determined by the solution of the proposition., whether a bequest to a son-in-law is a naming or providing for the daughter within the meaning of the eleventh section of the act concerning wills. (R. C. 1845, p. 1080.) The Roman law prohibited a parent from disinheriting his own issue ; but our law permits a father under no legal disability to devise all of his estate as he may see fit, saving to the widow her dower; (sec. 1;) and it is made the duty of all courts and all others concerned in the execution of wills to have a due regard to the direction of the will and the true intent and meaning of the testator. (Sec. 51.) The 11th section declares : “ If any person make his last will and die, leaving a child or children, or descendants of such child or children (in case of their death), not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, so far as shall regard any such child or children or their descendants not provided for, shall be deemed to die intestate,” &c.

This provision of the statute has been several times before this court for judicial construction, and it may now be considered as settled that the object of it is to produce an intestacy only when the child or the descendant of such child is unknown or forgotten, and thus unintentionally omitted; and the presumption that the omission is unintentional may be rebutted when the tenor of the will or any part of it indicates that the child or grand-child was not forgotten. (Guitar v. Gordon, 17 Mo. 408; Beck v. Metz, 25 Mo. 70; Terry v. Toler, 1 Mass. 146; Weld v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17; Wild v. Gass, 14 Mass. 359; Wilson v. Ficket, 6 Met. 400; Merrill v. Sanborn, 2 N. Hamp. 499; Block v. Block, 3 Mo. 594.) The statute extends only to a case of entire omission, and the mention of a child without a legacy or other provision for him is sufficient to cut him off from a distributive share of the estate ; (3 Mo. 594; 1 Mass. 146;) and whenever the mention of one person, by a natural association of ideas, suggests another, it may reasonably bo inferred that the latter was in the mind of the testator and was not foi'gotten or unintentionally omitted. Thus it has been decided that by the mention of a daughter, though dead at the time of making the will, it will be inferred that her children were not forgotten. (17 Mo. 408.) The mention of grand-children will exclude the parent. (2 Mass. 570; 3 Mass. 17.) Naming a son-in-law is sufficient to show that the daughter was brought to the recollection of the testator ; (14 Mass. 359;) and naming two grand-children will indicate that their brothers and sisters not named were intentionally omitted. (2 New Hamp. 499.)

It is insisted however that the testator in his will does not call Mr. Hockensmith his son-in-law, and that there is nothing to show that the legacy was bestowed because he was the husband of his daughter or that the relationship was present to his mind so as to bring up the recollection of his daughter. A gift to a son-in-law, unless otherwise intended, is considered an advancement to the daughter, although the husband may waste it and the wife derive no benefit from it. (Barber v. Taylor, 9 Dana, 86.) And it is so considered, because men, without strong motives, do not make valuable presents to strangers, and it is a reasonable inference that the daughter is the moving consideration that prompts the gift from her father to her husband. A covenant to stand seized to uses may be supported by the consideration of blood, and it has been held that the future wife of a son may fall within this consideration necessary to sustain such a covenant, for the covenant is made for the benefit of one’s posterity which may spring from the wife; (2 Hill. Real Prop. 313;) and the same principle for a like reason would perhaps be applied to a son-in-law.

In the absence of any thing appearing to the contrary, it must be supposed that the legacy to Mr. Hoekensmith was prompted by the fact that he was the testator’s son-in-law and that the daughter was the moving cause; and if the bequest was bestowed on her account, she must have been in the mind of the testator at the time he made his will. She would have been excluded, according to the doctrine of the cases cited, if the clause of the will providing for her husband had, besides naming him, stated his relation to the testator, though without giving that as a reason for the legacy; because it would be inferred that the mention of “ son-in-law” naturally recalled the daughter to his memory. Now if the motive to make the devise sprang from the fact that the legatee was his son-in-law, the inference that his daughter was not forgotten is quite as conclusive as if the relation between the testator and legatee had been stated. If Mr. Hoekensmith had not been related to Mr. Slusher, the curiosity of the family and neighbors would have been excited to ascertain why the legacy was given, and he would no doubt have been surprised himself ; but as it is, though no reason is given in the will, every one knows without asking what the real motive was, and is as well satisfied as if the testator had said in so many words in the will that the legacy was given because the legatee was the husband of his daughter. A stranger to the family in reading this will would inqxiire, why this provision for Mr. Hoekensmith ? but on being told that he was a son-in-law, the motive that actuated the bounty would be quite as obvious as if the fact had been stated in the will.

If the naming of one person in a will is sufficient, as it has been heretofore decided, to preclude another from claiming the benefit of the eleventh section when the relation that the person named sustains to the testator is stated, there can be no reason for withholding the operation of the principle from a case where the relation actually exists but is not formally mentioned. The provision which a father, dying intestate as to part of his personal estate, may make for his child by will, is not brought into hotch-pot, for such a provision to be construed an advancement must result from a complete act of the parent in his lifetime. (2 Will. Ex’rs, 1291.) If then any portion of the personal estate is undisposed of by the will, Mrs. Hockensmith will take her distributive share of it as one of the children, and will not bo charged with the legacy left to her husband. Now suppose that the legacy, instead of being one thousand dollars, was ten or twenty thousand, equal to or greater than a child’s portion of the whole estate, it could not be charged as an advancement to the wife, for the reasons already stated; and, if the plaintiff’s argument prevailed, the husband would take in such a case part of the estate under the will, and the wife would take her distributive share repudiating the will, and in that way one child would take a double portion, against the intention of the testator and the equality due to the other children.

The general rule is “ that parol evidence can not be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in in two specified cases; 1st, where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described, and 2d, to rebut a resulting trust. ” (Maun v. Maun’s Ex’rs, 1 John. Ch. R. 233.) This rule was not violated in admitting evidence that Wm. H. Hockensmith was known and called by the name of “ Harrison Hocken-smith,” and that he was the son-in-law of the testator; for such proof is often necessary to sustain a will and give effect to its provisions, and it is always allowed when there is a latent ambiguity as to the person intended to be described; as “ if there be a mistake in the name of the legatee, or there be two legatees of the same name.” If the executors had refused to pay the legacy of a thousand dollars on the ground that the plaintiff’s Christian name was “ Harrison,” he would hare found it necessary to invoke this rule; and surely if it would be competent for him in a suit to recover the legacy to identify himself as the person described in the will, the same kind of proof would be admissible when offered by the defendants in this suit.

The evidence of conversations with the testator in regard to his intentions concerning his real estate was improperly admitted. It did not bear on the proper construction of the sixth clause of the will, and was wholly irrelevant to the issue. But the judgment is fully sustained by the law and the evidence without this immaterial testimony, and it would be useless to remand the cause for a new trial on such an objection when we must see that the result would be the same to the plaintiffs.

Judge Scott concurring,

the judgment will be affirmed.
      Napton, Judge, having been of counsel, did not sit at the hearing of this cause.


author: Napton, Judge,

text:
    Bank of Missouri, Appellant, v. Matson, Respondent.
    1. Where the holder of a promissory note, at the request of a surety thereon, commences a suit by attachment against the principal debtor, and attaches property sufficient to make the debt, a voluntary dismissal of the suit -will release the surety.
    2. Although the writ of attachment in such case should be made returnable to the wrong term — as where, within fifteen days of the commencement of a term of court, the party against whom the writ issues is summoned to appear at such term — it will not thereby by rendered a nullity. (Riciiakd-son, Judge, dissenting.)

      Appeal from Livingston Circuit Court.

    This was an action on a promissory note executed by defendant, Matson, and one Lennox, and endorsed to the Bank of the State of Missouri, the plaintiff. The defendant admitted the execution of the note, and set up as a defence to the suit that he had signed the same as security for Lennox; that plaintiff knew this fact; that the plaintiff had, at the request of defendant, commenced a suit against Lennox, and in said suit had attached sufficient property to satisfy the debt; and had afterwards voluntarily dismissed the suit. At the trial the defendant introduced in evidence against the objection of plaintiff the writ of attachment in the suit of the Bank of Missouri v. Lennox. This writ was issued March 20, 1849, and made returnable on the first Monday in April then next, being the second day of the month. The defendant also introduced evidence supporting the allegations of the answer as above set forth. The court, at the instance of defendant, gave the following instruction : “ If the jury believe from the evidence that the defendant was only security for Lennox on the note in suit, and that plaintiff instituted suit by attachment in the Livingston circuit court against said Lennox on said note in the year 1849, and under said writ of attachment caused sufficient property to be attached to satisfy the debt evidenced by said note, and that plaintiff afterwards voluntarily abandoned said suit by attachment, and dismissed the same, they will find for defendant.”
    The court refused the following instructions asked by plaintiff: “ 1. That the jury must find for plaintiff the amount of the note and interest, unless they shall believe from the evidence that the bank, at the time the note was assigned to her, knew that defendant was only a security for Lennox, or unless they believe that the bank had by attachment acquired the means of collecting the amount of the note of Lennox, and by voluntarily dismissing her suit, when it might by proper diligence have been sustained, lost the means of making the amount out of Lennox. 2. Though the jury may believe from the evidence that the plaintiff attached sufficient property of Lennox to satisfy the note and failed by her own negligence or want of diligence to make the money of Lennox, still they must find for the plaintiff one-half the note and interest unless they believe from the evi-evidence that the bank at the time she took the note knew that Matson, the defendant, had signed the same only as security for Lennox; and the burden of proving this fact rests on the defendant. 3. They must in any event find for plaintiff unless they believe from the evidence that the bank had acquired a lien upon the property of Lennox sufficient to satisfy the note ; and if property belonging to Lennox had been attached and voluntarily released by her, but not sufficient to satisfy the note, then they must find for the plaintiff the balance of the note after deducting the value of the property attached and the costs of the attachment.”

      Ewing and Harris, for appellant.
    I. The circuit court erred in permitting the writ of attachment to be read in evidence. It was absolutely void. (Saunders v. Rains, 10 Mo. 770; 5 Wend. 276; Rum v. King, 2 Johns. 190 ; Parsons v. Loyd, 3 Wils. 341; Shirly v. Wright, 1 Ld. Ray, 775 ; Bink v. Barnard, 4 Johns. 309 ; 3 N. H. 70; 12 S. & M. 470; 1 Serg. & Raw. 327 ; 3 Yerg. 282.) The writ being void, the plaintiff in the attachment could acquire no right in virtue thereof. It was not only his right but his duty to abandon the proceedings. But, admitting that the writ of attachment was valid, it is insisted that an attachment of the property of the principal is not like the levy of an attachment. The levy of an execution upon the property of the principal is a certain means of satisfying the debt to the amount of the value of the property levied on. There are many ways in which an attachment suit may be defeated which can not be foreseen by the plaintiff nor prevented by him, and he ought therefore to be allowed some discretion in prosecuting or abandoning his suit, and not be told that if he docs not continue to prosecute his suit after success has become hopeless, thereby incurring additional liability for damages, he shall lose his recourse against the security. (See Montpelier v. Dueus, 4 Yerm. 587 ; Baker v. Marshall, 16 Yerm. 522; 5 How. 192; United States v.- Simpson, 3 Pen. & Watts, 439 ; 14 Penn. 58; 13 Penn. 420 ; 3 Comst. 452.)

      II. The court erred in rejecting the first and third instructions asked by plaintiff, also in giving the instruction asked by defendant.

      Prewett, for respondent.
    I. The writ of attachment was sufficient. If the writ was not in time for the first term, it was the defendant’s duty to appear at the second term. (R. C. 1845, p. 809, § 1, p. 131, \ 11.) It was not void. (Milburn v. State, 11 Mo. 188.) Whether the summons was valid or not, the attachment was good and an alias summons might have issued. (R. C. 1845, p. 135.) In Bland v. Schett, 5 Mo. 443, there was no clause of summons, yet the validity of the attachment does not seem to have depended upon that. In the subsequent case of Evans v. King, 7 Mo. 511, it was held that if the party appeared it was the same as if he was served. The attachment clause in the writ is for the purpose of levying on the property ; the clause of summons for the purpose of getting the party into court. Suppose the party had appeared and pleaded to the merits; he could not then have objected to the summons. Could he not have objected to the attachment ? He could not object to the attachment because the summons was not good, and yet not be permitted to object to ■ the summons itself. The attachment is to bring the property under the custody of the law. When it has done this it is functus officio. The summons is to bring in the party. If it fails in this, an alias may issue, or in proper cases an order of publication. The attachment does not depend on the summons for its validity, but is effectual whenever the defendant is in court by summons, publication or appearance. Suppose the defendant had appeared and moved to dissolve the attachment because the summons did not require him to appear at the right time, would it not be an absurdity to dissolve the attachment and yet give a general judgment? (Whiting v. Williams, 5 Mo. 443.) So an attachment may issue upon a suit already brought.
    II. The court did not err in giving or refusing instructions.
   Napton, Judge,

delivered the opinion of the court.

In this case the bank relies on the nullity of tlie writ of attachment to show that no- lien was acquired, and therefore that she was exempt from the operation of the rule that a creditor who gets a lien on the property of the principal debtor and voluntarily lets it go discharges the security. The question of diligence or negligence on the part of the bank is not in the case. That doubts may have been with propriety entertained in relation to the validity of this writ of attachment is quite manifest, and we should be very reluctant to hold the bank to a forfeiture of her security merely by reason of a wrong decision upon this point.

Few questions in a lawyer’s practice could arise more embarrassing in their determination than such as require him to fix upon the line where a writ ceases to be a nullity and is merely erroneous. Decisions-have fluctuated, and contradictory cases may be found. Neither ancient nor modern cases point out very clearly a rule by which such questions can be decided. I will briefly advert to some general principles which in my judgment ought to control the decision of such questions. Mesne process, whose object is notice, ought to be governed by different rules from final process ; and the adjudged cases keep this distinction in view. Final process has been always construed with favor, where mistakes have no tendency to oppression. It is important that the officer should be protected, and that the purchaser under an execution should get a good title. The writ of capias, whether used as mesne or final process, has always been construed with strictness for obvious reasons which have no application to our writ of summons. A distinction may also reasonably obtain between writs issuing from courts of general and those emanating from courts of limited jurisdiction. There is sound policy in requiring justices of the peace to conform closely to the statutory power confided to them, not with reference to the mere forms of their proceedings, but with reference to the line of their jurisdiction. Writs issuing from courts of record, where proceedings are more dilatory and are under the supervision of the judges, the bar, and the public, may properly be regarded with more leniency.

These considerations will probably show that the cases of Sanders v. Rains, 10 Mo. 770, and Milburn v. Gilman, 11 Mo. 64, are not conflicting. Neither of these cases is however decisive of the question here. The writ of attachment, although containing a clause of summons, and although usually and in this instance the commencement of proceedings, is really more nearly allied to final than to mesne process. It is substantially a writ of execution, except that it émanates at the beginning instead of the termination of a suit. Its object is to seize and hold property subject to the claims sued on and to satisfy them. The suggestion of the counsel for the defendant in this case, that the validity of the writ of attachment ought not to depend upon the validity of the clause of summons contained in it, is entitled to consideration. It may seem novel, and the statute makes the' clause of summons an essential portion of the writ of attachment, but in effect they may be regarded as two separate writs, and with separate objects — the one directing the officer to seize property as a security for the creditor — the other directing the officer to advise the debtor of what has been done. Of course the court will not permit the property seized to be subjected to the payment of the debt, unless the debtor is legally advised of the proceedings ; but it is not perceived why the invalidity or total nullity of the summons should necessarily make the attachment also a nullity. The summons is a constituent part of the attachment and may be conceded to be a mere nullity; yet it does not follow, for this reason alone, that the attachment is void, and the levy under it illegal, and the officer a trespasser. The defendant may appear, the writ may be amended, or a new summons issued. All this only tends to delay the creditor, not to oppress the debtor. If the property has been improperly attached, the statute has provided an ample remedy in the bond and security required of the creditor.

If the writ in this case had been a simple summons and made returnable sooner than the law authorized and a judgment by default was taken, the validity of such a judgment might be questioned. But that is not this case. The writ of attachment is made returnable at a day earlier than by law is warranted. Under this writ property is taken and the party defendant summoned. So far as the summons is concerned it may be regarded as a nullity, although we would not be understood as so deciding; and yet the remainder of the writ, under which the levy is made, does not necessarily fall with the summons. It is like an execution, and ought to be governed by the rules which are applicable to executions. An execution returnable at a day later than by law it should have been has been held only voidable. (Milburn v. Gilman, 11 Mo. 64.) To hold the attachment a nullity is to make the officer and all concerned in its levy trespassers. We see no injury which can result from considering the writ only voidable.

The instructions offered by the plaintiff, which sought to put to the jury the fact of diligence on the part of the bank, would have been appropriate, if any testimony on this subject had been submitted ; but the bank offered no evidence on the subject. The plaintiff produced the writ of attachment and its levy; proved the voluntary dismissal by the bank, and that the bank had been verbally requested by the defendant to institute this suit; and there the testimony ended. The bank offered no evidence in rebuttal, but relied on the invalidity of the writ. The whole case turned upon this question in the court below, and no testimony brought up the question of diligence. Whether the bank acted with due diligence does not appear. Whether she was advised to pursue the course she took by her legal counsel — whether she communicated to the security the steps taken in dismissing the writ — whether any effort, was made to amend or sue out a new writ — nowhere appears. Prima facie a case was made out against the bank. Her course might have been perfectly justifiable in dismissing an attachment, which was certainly voidable and might have been on good grounds esteemed void; but the defence is not placed on these grounds. It was relied on that the wñt was void, and we are not disposed to say that the writ was a mere nullity.

As to the knowledge of the bank that defendant was security at the time the note was given, it is not perceived how this circumstance has any bearing on the case, since it appeared that the bank was aware of this fact when the attach•ment was sued out. The instruction which put to the jury the hypothesis that the property secured under the attachment was insufficient to pay the debt was properly refused, as there was no evidence to warrant it.

Judge Scott concurring, the judgment is affirmed; Judge Richardson dissents, being of opinion that the writ of attachment was void.


text:
    Letton, by his Curator, Appellant, v. Graves et al., Respondent.

    1. In suits under section 30 of the act concerning wills (R. C. 1855, p. 1571,) to contest the validity of wills the supreme court will review the proceedings of the lower courts only in matters of law.

      Appeal from Lafayette Circuit Court.

    The facts appear in the opinion of the court.

      Hovey and Sharp, for appellant.
    I. The court erred in refusing to vacate and set aside the probate and to delare the instrument of writing not to be a will. It was not a testamentary instrument, nor did it have the requisites or characteristics of a will. (See 1 Jarman, 12; 1 Atk. 269; 8 P. Yms. 337; 7 John. Ch. 57; R. C. 1855, p. 1569; 1 Jarm. 215 ; 13 B. Mo. 307 ; 2 Paige, 396.)

      Ryland and Troxell, for respondents.
    I. The instrument in controversy was a testamentary instrument. (1 Jarm. 13, 115 ; 1 Dessaus. 554; 6 Dana, 257 ; 1 McCord, 409 ; 4 Hawks, 141; 1 Dessaus. 617; 12 N. H. 371; 4 McCord, 12, 198 ; 3 Paige, 368; 2 Yes. 204; 4 Brown. Ch. 355 ; 1 Williams on Ex’rs, 53, 4, 5 ; 2 Hagg. Eccl. 247 ; R. C. 1845, p. 1083 ; 2, Coxe, 16 ; 13 Yes. 297 ; 7 Mo. 591.)

       Napton, Judge, having been of counsel, did not sit at the hearing of this cause.

   Richardson, Judge,

delivered the opinion of the court.

This was an action under the 30th section of the act concerning wills (2 R. C. 1855, p. 157), and was instituted for the purpose of setting aside the probate which had been granted of an instrument of writing as the last will of John W. Letton, deceased. The case was tried by the court without a jury. No instructions were asked or given, and no exceptions were taken to the admission or exclusion of evidence.

The 31st section declares, “ the verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial as in other cases, and to either party an appeal, in matters of law, to the supreme court.”

We can not tell whether the court committed error in finding against the evidence — in which case we are not permitted to interfere — or in applying the law to the facts. If errors were committed in matters of law preserved by proper exceptions or instructions, or in the admission or exclusion of evidence, this court could correct such errors; (Dickey v. Malechin, 6 Mo. 177;) but this record presents nothing on which we are permitted to pass.

Judge Scott concurring,

the judgment will be affirmed.


text:
    Evans, Appellant, v. Franklin, Respondent.
    1. It is too late, after verdict in an action for slander, to object to the sufficiency of the justification set forth in the answer.

      Appeal from Dallas Circuit Cou/rt.

    This was an action for slanderous words. The slanderous words charged, leaving out the innuendoes, are: “ He stole my cow “Henry Evans stole my cow;” “he had stolen a cow“ he had stolen a cow belonging to the estate of James Franklin“ he had stolen a cow belonging to the estate of James Franklin, deceased.” “ Henry Evans had stolen a cow belonging to the estate of James Franklin, deceased.”
    The answer denies specifically the speaking of the words charged; and proceeds thus: “ And the said defendant for further answer says, he did say that plaintiff had stolen a certain red cow belonging to the estate of James Franklin, deceased ; and well ho might have so said, for he here avers, and so charges the fact to be, that he, said plaintiff, did steal a certain red cow belonging to the estate of James Franklin, deceased, some time in the year 1855; and said defendant for further answer denies that the plaintiff has sustained damages,” &c.
    The jury found a verdict for defendant.

      Wright for appellant.
    I. The pretended justification in the answer was a nullity and should have been so treated. (3 How. Prac. R. 406.)
    II. The court erred in giving the instructions asked on the part of defendant. The court erred in admitting any evidence in support of the supposed plea of justification. There was no evidence tending to show that plaintiff had been guilty of stealing. The evidence was not sufficient to prove even a trespass.

      W. P. Johnson, for respondent.
    I. If there was any objection to the answer the plaintiff should have moved the court to strike out the objectionable parts ; or, if wholly insufficient, asked judgment for want of an answer. It was too late after verdict to object to the answer. The cause was fairly submitted to the jury.
   Richardson, Judge,

delivered the opinion of the court.

It does not appear from the bill of exceptions that any exceptions were taken to the admission or exclusion of evidence, and, though it is stated that the defendant excepted to the instructions given for himself, it is not shown that the plaintiff objected or excepted to any of the instructions.

The plaintiff did not object to the answer until after the verdict. It was then too late, for it is settled that in actions of libel or slander the plaintiff can not object, on the trial or after the verdict, that a plea of justification is insufficient; and however insufficient it may be the defendant will be entitled to a verdict, if it be proved. (Edwards v. Walter, 3 Stark. 7.) Though the answer is informal, we think it presented only the issue of justification, and the general finding of the jury in favor of defendant was in proper form. The evidence was conflicting, and though we might think that the verdict should have been for the plaintiff, it is not so grossly against the evidence as to warrant the interference of this court.

The judgment will be affirmed,

with the concurrence of the other judges.


text:
    Bond, Defendant in Error, v. Worley et al., Plaintiff in Error.
    1. An agreement entered into by the payee of a promissory note with the maker thereof, that the latter shall have the privilege of renewing, can not he set up as a defence to a suit on the note.
    2. Usury must be specially pleaded.
    3. Bills for discovery are abolished.

      Error to Jackson Circuit Court.

    This was an action on several promissory notes. The defendants in their answer admitted the execution of the notes, but set forth at great length the circumstances under which they were executed, alleging that there was granted a privilege of renewing at the maturity, &c. All of this answer, except the admission of the execution of the notes, was stricken out on motion of the plaintiff.
    Hovey, for plaintiff in error.
    I. The answer shows an entire want of consideration as to the eight hundred dollars of the debt demanded. The debt was not due at the commencement of this suit. (R. C. 1855, p. 1233, 1290.)
    II. Whether or not a bill for discovery is a proper remedy under our statute, yet the answer, as such, was still good.
    Sheley, for defendant in error.
    I. The answer does not create or make a direct issue ; it only attempts to set up an excuse for non-compliance with the contract; and a motion was the only way to reach it. (See R. C. p. 1232, § 12, p. 1236, § 30, 31.)
    II. The old bill of discovery is abolished by our present practice act. R. C. p. 1290, § 28, 29, 30, 31.)
   Napton, Judge,

delivered the opinion of the court.

The answer in this case sets up as a defence to the notes sued on that the obligor Worley was to have the privilege of renewing them at the end of the year, when they became due. This is no defence to the action, as the agreement to renew - did not amount to a defeasance or release and can only be available as the basis of a separate suit. (Bucher v. Payne, 7 Mo. 462; Atwood v. Lewis, 6 Mo. 392.)

The plea does not amount to a plea of usury, and we presume was not so designed. The defendant avers his readiness to renew and pay the entire face of the notes (including the twenty per cent, interest) with ten per cent, interest upon this amount, provided the agreement above referred to for further time is complied with. Defendant also states that the $800 note is without consideration, except the agreement aforesaid; the conclusion from all which is, that the notes are not yet due, but no unwillingness is expressed to pay them whenever they are due on account of any usurious interest being embraced in them. The answer ends with a prayer for discovery and for general relief.

It is not difficult to frame a plea of usury, and no particular form is required; nor ought any odium to attach to a resistance to exorbitant exactions. Still, it is at the option of a party to plead it or not; and although the court may infer from the facts stated that such a plea would have been available, the defence is not for this reason to be considered as set up. No bill of discovery is now allowed since our statute has provided other more convenient modes by which every purpose of such bills can be attained.

The other judges concur. Judgment affirmed.


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    Speaker, Plaintiff in Errror, v. McKenzie, Defendant in Error.
    1. Words charging that a man had whipped his mother are not actionable in themselves; special damage must be alleged.

      Error to Livingston Circuit Court.

    This was an action for slanderous words. The words charged, leaving out the innuendoes, are as follows: “He whipped his mother“ he whipped his mother and-told me so “ one Mr.-told me that he had whipped his mother and left.”
    The court sustained a demurrer to the petition.

      Ewing, for plaintiff in error.
    The words charged are actionable. The gravamen in an action of slander is social degradation. The words in this case charge such a criminal violation of filial obligations and duties as necessarily involves social degradation. The phrase “ assault and battery” includes the various grades of that offence, and is punishable according to the grade by fine, or by both fine and imprisonment in the county jail or in the penitentiary. Simple assault and battery is punishable by imprisonment if the fine is not paid. Plaintiff was charged with having committed the crime in the state of Ohio and fled therefrom in consequence of it. At the common law, assault and battery was an indictable offence and punishable by fine and imprisonment, and in some cases by ignominious penalties, such as pillory. (2 Black. 166.) The common law will, in the absence of proof, be presumed to be the law of Ohio. (Baker v. Pierce, 6 Mod. 24; 1 Bulst. 40 ; Stark, on Slander, 15, 26 ; Onslow v. Horne, 3 Wills. 177 ; Holt v. Shaffield, 6 T. R. 691.) Words which charge or import a crime punishable by law, whatever may be the nature or degree of the crime, are actionable in themselves. (1 Swift, 484; see also Woodbury v. Thompson, 3 N. H. 194; 14 Johns. 233.)

      Gardenhire & Lay, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

This was a suit for slander, and the words alleged to have been spoken are- that the plaintiff had whipped his mother. This charge imputed only an assault and battery, and the words laid in the petition are not actionable without the averment of special damage. (Birch v. Benton, 26 Mo. 153.) The demurrer to the petition was properly sustained; and the other judges concurring, the judgment will be affirmed.


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    Ish, Respondent, v. Chilton, Appellant.
    1. The sixth section of the forcible entry and detainer act (K. C. 1855, p. 788) regulates the form and substance of the complaint in an action of forcible entry and detainer.
    2. A complaint in an action of unlawful detainer in the following form: “ Plaintiff states that defendant unlawfully detains from him a tract of land belonging to plaintiff [describing it]; that said farm belongs to plaintiff, and the defendant wrongfully and unlawfully detains the same from plaintiff, and has since the first day of March, 1856; that said premises are worth twenty dollars per month,” is sufficient.
    8. If a tenant holds over the premises demised with the acquiescence of his landlord, he is not guilty of an unlawful detainer.

      Appeal from Jackson Court of Common Pleas.

    This was an action of unlawful detainer. The following is the complaint: “ Plaintiff states that defendant unlawfully detains from him a tract of land belonging to plaintiff, lying in Jackson county, Missouri, described and known as eighty acres of land lying immediately east of the lands of the heirs of Jonathan Colcord, deceased, and immediately east of the dwelling house on said lands occupied by Mrs. Rebecca Col-cord, being the same farm occupied by Robert Daniel, jr., in the year 1855, and from which he removed in the spring of 1856; that said farm belongs to plaintiff, and defendant wrongfully and unlawfully detains the same from plaintiff, and has since the first day of March, 1857. The said premises are worth the sum of twenty dollars per month.”
    The defendant moved the court to dismiss the suit for the insufficiency of the complaint. The court overruled the motion. The jury rendered a verdict in favor of complainant.
    Hovey, for appellant.
    I. The court ought to have dismissed this suit on motion. No facts were stated which warranted the issuing of the writ. (Andrae v. Heinreitz, 19 Mo. 311; Archer v. Goldstein, 13 Mo. 24.) The court erred in instructing the jury. The first instruction is bad for want of the words “ without the consent of Ish, either express or implied,” following the words “ after his term had thus expired.” (4 Knt. Com. 112; 2 Black. Com. 150.) The third instruction was erroneous. (1 Sto. Eq. \ 323, 330.)

      Ryland & Son, for respondent.
    I. The complaint is sufficient under section 6 of act of forcible entry and detainer. (R. C. 1855, p. 788.) The description of premises is sufficient. (Tipton v. Swayal, 4 Mo. 98.) This complaint is not liable to the objection taken in Andrae v. Heinreitz, 19 Mo. 311. At all events it is good after verdict. The court properly instructed the jury. No notice to quit was necessary. (R. C. 1855, p. 1012, § 14; 19 Mo. 122; Clayton v. Blakley, 8 Mo. 3.)
   Napton, Judge,

delivered the opinion of the court.

The sixth section of the act concerning forcible entry and detainer (R. C. 1855, p. 788) is the one which we understand to regulate the form and substance of a complaint under this statute. In that section the facts which must be stated in the complaint to authorize the justice to issue his writ are pointed out. The complaint must be in writing, signed by the party aggrieved or his attorney, and verified by affidavit. It must specify the land or tenement upon which the forcible entry and detainer or the unlawful detainer has been committed; must state by whom the wrong is done, and at what time it was committed. Upon such a statement as this the jxistice is authorized by the statute to proceed. The second and third sections of the statute contain a more particular definition of the acts which constitute the two offences; but these sections were not designed to prescribe the form of the complaint. If that conforms to the provisions of the sixth section it is sufficient; and upon the trial the plaintiff must show that the defendant has been guilty of the forcible entry and detainer or the unlawful detainer, as these offences are described and defined in the second and third sections, according as the one or the other has been charged in his complaint.

The complaint in this case is, in our opinion, sufficient. It complies with all the requisites of the sixth section of the act. The land is described with certainty enough ; the offence is specified in the words of the section, and the time when and the person by whom the offence was committed are also stated. In the case of Andrae v. Heinreitz, 19 Mo. 311, the complaint was liable to objections wliicb do not exist against the present; still it is apparent that the court in that case overlooked or disregarded the sixth section of the statute and required the complaint to be made so as to conform to one of the various cases particularly described in the second and third sections. As this remedy is designed to be summary and its cognizance is entrusted to justices of the peace, we think it reasonable to infer that great strictness in the forms of procedure was not designed to be enforced. Indeed in the multitude of mutations which this statute has undergone since its first revision in 1825, so many additions, omissions and changes have occurred, that it might puzzle even a skillful pleader so to frame a complaint as to embrace some of the cases enumerated in these two sections.

The first instruction given by the court is as follows : “ If the jury believe from the evidence that defendant rented from plaintiff the premises mentioned in the complaint for the year 1856, ending March 1st, 1857, and that at the time of the commencement of this action his term of renting had expired, and that defendant continued to hold and occupy said premises after his term had thus expired, defendant was guilty of an unlawful detainer, and the jury will find the defendant guilty of an unlawful detainer.”

There is no doubt that where a tenancy is to terminate at a fixed time no notice to quit is necessary, and if such tenant wilfully holds over after the expiration of his term, he may, after demand made and notice in writing given requiring the possession, be made liable to the payment of double rent, within the ninth section of our act concerning landlords and tenants. (R. C. 1855, p. 1012.) But a tenant may hold over by permission of the landlord and become, according to circumstances, a tenant from year to year, or a tenant at sufferance. If the landlord receives rent after the termination of the lease, the tenant is usually regarded as a tenant from year to year; and even without the reception of rent, when the tenancy continues with the consent of the landlord, it can not be less than a tenancy at sufferance. In the latter case our statute has provided for one month’s notice.

The instruction given by the court excludes from the jury all inquiry into the consent of Ish, the landlord, to the continuance of the defendant on his land after the first of March, 1857, and up to the 19th of that month, when the notice to quit was served.

It seems that there was some understanding that defendant should, upon certain contingencies, have the refusal of the land for another year. Although this agreement or understanding, being verbal only, was not binding on the plaintiff, as the court properly declared to the jury, and in that point of view was no defence to the action, still it is possible that the jury might have inferred from this and perhaps other circumstances an acquiescence on the part of plaintiff in the defendant’s holding over. Under the instruction as given this point was not open to the jury. They are directed to find a verdict for plaintiff, if they find a holding over, without any qualification as to the character of such holding, whether willful, as the statute describes it, or, which is the same thing, without the consent of the landlord, or not.

None of the instructions asked by defendant were given, nor do we think their refusal would have constituted any objection to the judgment, if the instruction given had been modified as suggested.

The judgment must be reversed and the cause remanded;

the other judges concurring.


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    The State, Appellant, v. Ross, Respondent.
    1. An indictment charging that the defendant, a minister of the gospel, unlawfully joined in marriage a minor, “without then and there having the certificate or presence and consent of the parent or guardian, or other person having the care and government of such minor,” is insufficient.

      Appeal from, Polk Circuit Cowrt.

    The quashing of the following indictment, which was founded on the act regulating marriages (R. C. 1855, p. 1062), constitutes the error complained of: “The grand jurors for the State of Missouri, <fcc., upon their oaths present, that James P. Alsup on the 19th day of July, A. D. 1856, at the county of Polk aforesaid, was then and there a minor under the age of twenty-one years, and was then and there the son of John P. Alsup, who was then and there the father and natural guardian of James P. Alsup, and who had the legal custody of said James P. Alsup, to-wit, at the county of Polk aforesaid; and the jurors aforesaid, upon their oaths aforesaid, do further say that Robert Ross, late of the county of Polk and state of Missouri, on said 19th day of July, A. D. 1856, at the county of Polk aforesaid, the said Robert Ross then and there being a minister of the gospel, did then and there unlawfully join in marriage said James P. Alsup and Maria Ross, the said James P. Alsup then and there being a male under the ago of twenty-one years, without said Robert Ross then and there having the certificate or presence and consent of the parent or guardian or other person having the care and government of such minor, to-wit, on said 19th day of July, A. D. 1856, at the county and state aforesaid, contrary,” &c.
    Ewing, (attorney general,) for the State.

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

delivered the opinion of the court.

The indictment in this case was properly quashed because it does not follow the law under which it was framed. The seventh section of the act regulating marriages prohibits the joining in marriage any male under the age of twenty-one years or female under the age of eighteen years, unless the parent or guardian, or other person under whose care or government such minor may be, shall be present and give consent thereto; or unless the minor applying shall produce a certificate in writing under the hand of the parent or parents or guardian, or, if such minor has no parent or guardian, then under the hand of the person .under whose care and government he or she may be.

The indictment does not allege that the minor did not produce a certificate of approbation from the proper person, but only that the defendant performed the marriage ceremony without “ then and there having the certificate or presence and consent of the parent or guardian or other person having the care and government of such.” Certificate of what ? The law does not require the person performing the ceremony to have a certificate, whether the parent or guardian is present or not; but it is sufficient that a proper certificate is produced by the minor. There is nothing in the indictment negativing the fact that the minor produced the necessary certificate.

The judgment will be affirmed with the concurrence of the other judges.


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    Bruce, Appellant, v. Saline County, Respondent.
    1. Where a road has been opened by order of a county court, the proper course to bo pursued by one who wishes to have the same closed is to apply to the county court by petition, under the 30th and 31st sections of article 1st of the act concerning roads and highways (R. C. 1855, p. 1374) to vacate the same as useless.

      Appeal from Saline Circuit Court.

    At February term, 1851, of the county court of Saline county, an order was made appointing commissioners to open a certain road. The commissioners made their report at the May term, 1851. The report was approved, the court at the time making the order that “ said road as viewed and marked out by the aforesaid commissioners, when cut out, will be established as a public highway.” The court at the same time appointed an overseer to cut out and put the road in repair, and districted the road, and appointed justices of the peace to allot hands to work said road. At the August term, 1857, of the Saline county court, the court made another order appointing a new overseer, and directing him to open, cut out and put tlie road in good repair. At adjourned term, September, 1857, A. E. Bruce made a motion to set aside the last mentioned order upon tlie following grounds: 1st, because said road was not legally established as the law directs; 2d, because the assent of parties over whose lands said road passes have not consented to the same, nor have they been notified of said road passing over their land; 3d, because said road, if established at all, was so established sis years ago, but has never been opened or repaired or kept in repair or used as a public highway. This motion was “ rejected by the court.” An appeal was granted to the circuit court. A motion was made in the circuit court in behalf of the county court to dismiss this appeal, which motion was granted and the appeal dismissed.

      Adams, for appellant.
    I. An appeal will lie to the circuit court from an order of the county court requiring a new road to be opened. (Guyer v. Cooper County 19 Mo.-.) The county court had no right or power to make an order for the opening of a road, which had been abandoned for six years, without the institution of proceedings de novo. The appeal was not taken from an order appointing a road overseer, but from an order requiring a road to be opened which had no existence and had been closed for six years.

      Ryland & Son, for respondent.
    I. An appeal does not lie in a case like this to the circuit court. (10 Mo. 364, 680.) Bruce, the appellant, shows no interest in the matter in controversy.
   Scott, Judge,

delivered the opinion of the court.

We do not consider that Bruce took the necessary step to attain the object he had in view. If he was aggrieved by the opening of the road, he should have adopted the proper means for redress when the road was first opened. No such length of time had elapsed, from the period of opening the road until the proceedings of the county court in 1857, as would authorize the presumption that the road had been abandoned. The county courts may vacate roads. If the long disuse of this road afforded a presumption of its uselessness, then Bruce, by proceeding under the 80th and 81st sections of the act concerning roads, might have had the question determined whether the road was abandoned or not. ' The county court had no authority in the manner proposed by Bruce to determine the question whether there was a road or not. The other judges concurring, the judgment will be affirmed.


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    Clark et al., Defendants in Error, v. Huffaker’s Administrator, Plaintiff in Error.
    1. In an action against A. and B. as partners, the declarations of A. are inadmissible in behalf of B. to disprove the partnership alleged; nor, where B.’s declarations are resorted to in such case to prove the partnership as against him, can he disprove such declarations by declarations of a contrary character made by himself.

      Error to Jackson Circuit Court.

    This was an action upon two promissory notes against C. M. Smith and Charles H. Thornton, administrator of F. W. Huffaker, deceased. The notes were alleged to have been executed by Smith and Huffaker as partners, under the name and style of “ C. M. Smith.” Default was taken against Smith. Thornton answered. To show that Huffaker was a partner of Smith, plaintiffs introduced in evidence declarations made by said Huffaker. To disprove the alleged partnership defendant offered in evidence declarations made by Smith and Huffaker. They were rejected by the court. The jury found a verdict for plaintiffs.
    Adams, for plaintiff in error.
    I. The plaintiff had a right to prove that Huffaker was a partner of Smith by his declarations or admissions. The defendant surely had the right to rebut this proof by showing that Huffaker did not hold himself out to the world as partner! The articles of agreement between Huffaker and Smith and the power of attorney from Smith were the best evidence that could be adduced to show the relation between them. His acts and declarations were admissible in rebuttal. If this evidence is not admissible it is difficult to perceive how a party could protect himself. An allegation of partnership is made ; a witness is suborned to testify to declarations tending to show that he has held himself out to the world as a partner. Can he not disprove this by showing that he was merely a clerk, and that his conduct and that of his employer, and their acts and declarations explanatory of those acts, made contemporaneously with them, were consistent with the true position he occupied, and tended to show that he did not hold himself out as partner ? To admit such evidence is not permitting a party to make evidence for himself. There is no pretence that any representations were made to the plaintiff. (1 Esp. 29 ; 2 H. Bl. 285 ; 1 B. & Ad. 128 ; 7 B. Mon. 457 ; 8 Ala. 560 ; 1 Moody & Rob. 9.)

      Hovey, for defendant in error.
    I. The court did not err in rejecting the testimony offered in behalf of defendant. (3 Watts, 105 ; G-ow on Part. 198 ; Story on Part. § 64, 84; Young v. Smith, 25 Mo. 341; 1 G-reenl. Ev. § 110.)
   Scott, Judge,

delivered the opinion of the court.

It is not easy to perceive any principle which makes the acts or declarations of Smith evidence for Thornton, the administrator of Huffaker. If two are jointly sued, where is the rule which allows the acts or declarations of one to affect the other before there is first established some privity between them by contract, by crime, or in law. So far from any thing like that being the case here, the declarations of one party to the suit are offered to show that there was no such relation between him and his co-defendant as would make his declarations evidence. If two are sued as partners, can the declarations or conduct of one be given in evidence for the other before the fact of the partnership is established ? Smith’s declarations and conduct may affect himself, but on what principle are they evidence for one who uses them for the very purpose of showing that there was no such relationship between him and Smith as would authorize Smith by a verbal act or any other kind of act to affect him ? How is the objection answered by saying that Smith’s declarations are part of the res gestee ? By whom were the res gestee performed ? If by .any one, certainly by Smith. How can Smith by his declarations make evidence for another, not as against himself but as against a stranger ? The objection to the evidence is, that it is an unsworn declaration, which can only be evidence against the party making it, or one who is in privity with •him by law, by contract, or by crime ? So far from any privity existing between these parties, the evidence is offered to show that there was none. It is just the same case as if the unsworn declarations of any other person were offered to prove a fact. Ordinarily, if two parties are wrongfully joined in an action as defendants, and one wants the evidence of the other, the co-defendant’s defence is submitted to the jury, and if they find for him he is then sworn as a witness. When this cause was tried, the act supplementary to the act concerning witnesses, approved 12th February, 1857, was in force. (Sess. Acts, 1857, p. 181.) That act allows a defendant to examine his co-defendant. If our act is to receive the construction of the New York statute from which it was copied, it would seem that in this case Thornton might have had Smith sworn as a witness. (Voor. N. Y. Code, § 3, p. 400.) What right had he then to use, as evidence, his declarations ? But if he had no right to make a witness of him, it does not follow that his unsworn declarations must have been evidence.

Thus much as to Smith’s acts and declarations as evidence for his co-defendant; now as to the acts of Huifaker. Smith and Huffaker’s administrator were sued for a partnership debt alleged to hayo been contracted by Smith and Huffaker. Smith admitted his indebtedness, and there was an abundance of testimony showing the liability of Huffaker as his partner. When partners sue as plaintiffs, their articles of co-partnership, or their acts and their declarations of each other as-partners, in connection with the business, may be given in evidence in their favor to prove their partnership. (Gilbert v. Whidden, 20 Maine, 367.) There is no other way of establishing the fact of a partnership. But we consider it a different matter, when persons are sued as partners and a full case is made out against them, that they should be permitted by their acts and declarations to disprove the case thus made. Under some circumstances when a witness states a fact and an attempt is made to discredit him, it may be shown that he has always been consistent in his averments in relation to that fact. But when it is sought to bind a party by his declarations and admissions, and such declarations and admissions are produced in evidence against him, it is not competent to him to show that he made at other times declarations of a contrary character. A party’s declarations may be evidence against him but not for him. Let the judgment be affirmed.