author: Soon, Judge,

text:
    Gillett, Plaintiff in Error, v. Camp and wife, Defendants in Error.
    X, A proceeding in a probate court of a sister state against a citizen of the state of Missouri, with constructive notice only, is not a judicial proceeding within the meaning of. the constitution of the United States.

      Error to Warren Circuit Court.

    The amended petition in this case is as follows : “ Plaintiff states that in the year of our Lord 1848, he was appointed guardian of Elvira Debo, a minor at that time, under the age of twenty-one years., by the Probate'Court of the county of Lafayette, in the state of Wisconsin, at which time the said Elvira owned an interest in several negroes in Marion county, Missouri, worth about ¡$1000, and which interest is now much larger ; and said negroes are still in the said county of Warren ; that he qualified as such and accepted the trust; that she was at that time living with him in said county of Lafayette ; that from that time he took care and control of her ; furnished her a support, clothed and sent her to school, until some time in the year of our Lord-, while she was at school in the city of St. Louis, she, without his knowledge or consent, left the school he placed her at, and got married to said Beverly Camp ; that, at the comm''nc<'ment of this suit, he and she were living together as husband and wife, in the county of Warren, state of Missouri. He further says that after he ascertained that she had left the school and married the defendant, he informed the probate court aforesaid of the fact, and, under the direction of that court, gave the notice required of the time and place he would apply for a final settlement of his accounts as her guardian ; and that, in pursuance of that notice, he did present to said court, at the court-house, in the village of Shullsbury, in the county of Lafayette, in the state of Wisconsin, on the 28th day of November, 1858, his account for his advances and expenses for her support, clothing and schooling, the interest thereon, and costs of his guardianship; that said accounts were then and there fully examined by the court; that, upon this examination of the accounts and settlement thereof, the court allowed a balance due said plaintiff against the said Elvira and Beverly her husband, of the sum of $612 47; that said balance is yet due with interest thereon, and every part thereof unpaid ; that said allowance and decree has not been appealed from or in any way reversed, but still remains in said court in full force ; wherefore he asks judgment for the same, with interest till paid. Plaintiff further says that said defendants are indebted to him in the said sum of $612 47, for money paid and expenses incurred by him towards the education and maintenance of the said Elvira, before her marriage, for which he asks judgment. The plaintiff further states that, upon the final settlement aforesaid, the court discharged him from any further duties as guardian of said Elvira.”
    To this petition defendants demurred; the court sustained the demurrer, and gave judgment for the defendants. Plaintiff brings the case to this court by writ of error.

      Hunt, Broadhead, Ji. D. Glover and Glover & Richardson, for plaintiff in ¡rror.
    I. Gillett’s guardianship ceased on the marriage of his ward Elvira with Camp, and gave him a right to a final settlement of his accounts with her and her husband. (Reeve’s Dom. Rel. § 827.)
    II. Gillett was not bound to maintain and educate his ward at his own expense, but had a 'right to be reimbursed therefor out of her estate, she having an estate in Missouri. (Reeve’s Dom. Rel. 324.)
    III. The Probate Court in Wisconsin that appointed Gillett guardian of said Elvira, had jurisdiction to audit and settle his accounts : and after notice given f r the purpose, a final settlement has the force of a judgment. (Caldwell v. Rockbridge, 9 Mo. 362.)
    IY. The record of this judgment recites that the defendants were notified, and it is so stated in the petition. These recitals as to the jurisdiction of the court, as well as those relating to the merits, as they are a part of the record, must be taken as true and conclusive till appealed from or corrected in that court. (16 Mo. 108 ; 10 How. 871 ; 19 Mo. 324 ; Story’s Conf. of Laws, § 606; 21 Mo. 557 ; 1 Stark, on Co. 209.)
    Y. A final settlement by a guardian, in the proper probate court, after due notice given according to the requirements of the statute for such settlement, is conclusive against the world, whether any of the parties interested were actually present or not, unless it can be impeached for fraud or collusion. (1 Stark. Ev. 228, 231; 4 Johns. Ch. 106. See generally Parks v. Stonum, 8 Ala. 752 ; 1 Greenl. Ev. § 504 ; 1 Kent Com. 260 ; Mills v. Duryer, 7 Cranch, 481; Warren & Datlon v. Lusk, 16 Mo. 102 ; Rev. Stat. Wis. 1849, p. 399; 5 Monroe, 576 ; 1 Harr. & Jo. 23, 134 ; 3 Gill & Jo. 25 ; 17 S. & R. 336; 1 Pet. 328 ; Elliott & wife v. Lewis et al., 3 Edwards’ Ch. 40 ; Cunningham v. Pool, 9 Ala. 615; 2 Kent, 190, 191; Newport v. Cook, 2 Ashmead, 332; Still v. Glass, 1 Kelly, 475 ; Selin v. Snyder, 7 S. k R. 172 ; Kennedy v. Wachsmutt, 12 Serg. & R. 171; Hampton v. McConnell, 3 Wheat. 234; Green y. Sarmiento, Pet. C. C. R. 74; Smith v. Rhodes, 1 Day, 168 ; 1 Greenl. Ev. § 522-3.)

      Portar and Saunders, for defendants in error.
    I. The proceeding before the Probate Court was ex 'parte and without any notice to respondents, or appearance or waiver of notice, to warrant a judgment or decree against them, and any such judgment or decree is therefore void. ( Sailer v. Hays, 3 Mo. 84 ; Webb y. Garner, 4 Mo. 12 ; Smith y. Russell, 6 Mo. 463.) Such a balance found could, at most, be operative as a judgment only on the effects of his former ward in his power or control in Wisconsin, and not so as to be enforced by a suit in Missouri.
    II. The facts stated in the petition do not show any judgment or decree against the respondents ; nor does it show that the articles furnished his said minor ward by plaintiff were really ne- • cessaries suitable to her circumstances; nor that plaintiff furnished said articles intending at the time to charge said Elvira, the respondent, therewith; nor any promise, express or implied, to repay the same to him on the part of respondents or either of them. (Chitty on Contracts, 140,142.)
   Soon, Judge,

delivered the opinion of the court.

The case came up on a demurrer to the petition. Camp, with his wife, who had been a ward of Gillett, resided in this state. Gillett, who had been guardian of Mrs. Camp, was a citizen of Wisconsin, where he was appointed her guardian. Mrs. Camp, it seems, had no estate in Wisconsin, at least none ever came to the hands of her guardian, if his accounts are true and just. Upon no other notice than that of a publication in the newspapers while Camp and his wife were living in this state, Gillett went into a probate court, in the state of Wisconsin, and established a demand against Mrs. Camp, as his ward. This proceeding, in a probate court in the state of Wisconsin, against citizens of Missouri, with no other than constructive notice, is maintained to be a judicial proceeding witbin the meaning of the constitution of tbe United States, and as such is entitled to such faith and credit in all the other states as it enjoyed in the state of Wisconsin. The record does not inform us what credit was due to this proceeding by the laws of Wisconsin; but we think we may say, however great that credit may be, it was not a record nor judicial proceeding within the contemplation of the constitution and laws of the United States. The authorities are uniform that a judgment in one state against a citizen of another state, on constructive notice, is a nullity, irrespective of the faith and credit that may be given to it by the law of the state where it is rendered. (See 2 Cow. & Hill’s notes, 907.) There was no error, therefore, in sustaining the demurrer to the first count in the declaration or petition.

But there was a second count for money paid and expenses incurred towards the education and maintenance of the wife of the plaintiff. Under the liberality now allowed in pleading, we can not say that this count was insufficient.

In overruling the demurrer to this count in the petition, we do not wish to be understood as expressing an opinion favorable to the plaintiff’s claim. The case is before us on a demurrer, consequently we can know nothing of the circumstances under which the charges against the defendants are preferred. A guardian can not make what accounts he sees fit on behalf of his ward, and expect them to be allowed as a matter of course. He must have regard to her expectations in life, and educate her accordingly. The other judges concurring, the judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: Rylaxd, Judge,

license: Public Domain

text:
    Anderson, Respondent, v. Anderson, et al., Appellants.
    X. Where in a suit for partition there has been no service of a copy of the petition with the requisite notice upon jtwo of the defendants, and there is filed an instrument in the following form, signed by said two defendants: “ October 6th, 1854. We wish to waive the notice of the division of the real estate belonging to the heirs of E. T. A., deceased. [Signed] S. C.’ M. A.Held, that this does not amount to a service on them or an appearance by them, and that a judgment by default against them would be irregular and should be set aside.

      Appeal from, Lincoln Circuit Court.

      Broadhead and Hunt, for appellants.
    I. The parties defendant were not in court when the judgment was rendered. Two of them were not served with process. The memorandum attached to the petition is no appearance in court. (Sess. Acts, 1847, p. 106 ; R. C. 1845, p. 804-5.) There are only two modes of commencing a suit under the practice acts of 1845 and 1849 ; first, by the voluntary appearance of the party ; second, by filing a declaration or petition and suing out a summons. By the act of 1847, the latter mode may be adopted, but the time of service (which, by the partition law, is four weeks,) is not changed. In this case there was no voluntary appearance of two of them, and the others were not served in time, as appears by the judgment of partition. A copy of the petition only was delivered to Harrison Anderson, without a copy of the writ, or any notice when or where it would be presented. (R. C. 1845, p. 805 ; Practice Act, 1849, art. 5, sec. 1, 4; Waddingham et al. v. City of St. Louis, 14 Mo. 195.)
    II. The first judgment by which the rights of the parties was found, was merely interlocutory ; (McMurtry v. Glascock, 20 Mo. 432 ; 8 Mo. 53 ;) and the motion being made before the report of the commissioners was acted on, ought to have been sustained and leave to plead granted.
    III. The judgment of the court was manifestly erroneous in giving to the widow one-half the land. There was no averment or proof that she made her election as provided by the 7th section of the dower law, and she was therefore only entitled to dower under the first section of that law, one-third during her life. (R. O. 1845, p. 480-1.)
    «¿2. H. Buckner, for respondent.
   Rylaxd, Judge,

delivered the opinion of tbe court.

Susannah Anderson filed her petition in the office of the clerk of the Circuit Court of Lincoln county, on the 21st of August, 1854, against Jeremiah Anderson and others, as heirs of Ransom T. Anderson, deceased. The petitioner states that she is the lawful widow of said Ransom T. Anderson, and the defendant, Jeremiah Anderson, the father, and James Anderson, Harrison Anderson, Sarah Cochran, Julia Williams, and Mary Anderson, his brothers and sisters ; that said Ransom died intestate, without leaving any child or children living ; that the petitioner, as his widow, is entitled to one equal undivided half of the real estate of which the said Ransom died seized, and that the above named persons, as father and brothers and sisters, are entitled to the other half of said real-estate — that is, the widow is entitled to one-half, and each of the others to one-sixth of the other half; that said Ransom died seized of about 485 acres of land, which is specifically set forth and described in said petition. The petitioner avers that the debts against the estate of said Ransom have all been paid, and that no reason exists why any partition of said lands should not be made according to the rights of the parties, and “ asks that each of said defendants be duly notified of this suit, and that the court will adjudge partition of said lands among said parties according to their respective rights, and appoint commissioners to make said partition.”

On this petition a summons was issued dated August 21, 1854, returnable to the first day of the next term of the Circuit Court of said county, which was to begin and be held on the first Monday in October next ensuing, against Jeremiah Anderson, James Anderson, Harrison Anderson, James Williams and Julia Williams his wife, and Mary Anderson. The name of Sarah Cochran does not appear in this summons. The sheriff made the following return on said summons, viz : ‘£ Executed the within writ in Lincoln county, on Jeremiah Anderson, James Anderson, James Williams, Julia’ Williams, and Harrison Anderson, by reading the same and a copy of the petition hereunto attached in each of their hearing, and delivered said petition to Harrison Anderson, this first day of September, 1854. Mary Anderson is not to be found in Lincoln county by me. W. It. Womack, sheriff.”

At the October term, 1854, of the Lincoln Circuit Court, an order of partition in the lands mentioned in the petition was made, and commissioners appointed to allot and divide the same among the parties in interest, the court adjudging one-half to the petitioner, and to each of the other heirs one-sixth of the lands. Previously to making the order of partition the following-entry is made, as appears by the record: “Nowhere comes the plaintiff by her attorney, and the said defendants, Sarah Cochran and Mary Anderson, having waived the service of notice in this cause in writing, and the other defendants, Jeremiah Anderson, James Anderson, Hannah Anderson, James Williams and Julia Williams his wife, having been duly served with process in this cause at least twenty days prior to this term of this court, and having failed to appear and answer as required,” &c. At the May term of the court, in 1855, the commissioners made their report, which was filed. The death of the petitioner was suggested, and the defendants made their motion to set aside the judgment in this cause, and to postpone the confirmation of the commissioners’ report until their motion is decided. Among the reasons assigned in support of the motion is the want of notice of the application as required by law. At the same time William M. Welch and others, as the heirs of said petitioner, were, on their motion, permitted to become the plaintiffs in this cause, and it was continued.

At the October term, 1855, the defendants’ motion to set aside the judgment was overruled, and the report of the commissioners was approved, and judgment of partition in accordance therewith. The defendants excepted, and filed their bill of exceptions, and bring the case here by appeal. From the bill of exceptions, it appears that on the motion to set aside tbe judgment by default, tbe plaintiffs read to tbe court a paper attached to tbe petition on file, wbicb paper bad been filed in open court at October term, 1854, and is as follows : “ October the 6th, 1854. We wish to waive tbe notice of tbe division of tbe real estate belonging to tbe heirs of R. T. Anderson, deceased. [Signed] Sarah Cochran, Mary Anderson.”

In this case, tbe service of tbe summons by the sheriff on all tbe defendants but two, Sarah Cochran and Mary Anderson, was more than “ four weeks” before tbe return day of tbe writ. This is manifest by tbe record. True, the entry made by tbe clerk that tbe other defendants “ have been duly served with process in this cause at least twenty days prior to this term of the court,” may indicate that, in tbe opinion of the Circuit Court, such was the time required for service in such cases. Yet the record shows that the service was on the first day of September, and the return day of the writ was the first Monday in October — more than four weeks ; so, whether this proceeding be under tbe partition act of 1845, as amended by act of 1847, or under the dower act of 1845, still the service was timely, and substantially good as to all the defendants except Sarah Cochran and Mary Anderson.

There is no service on these two last defendants, nor is there any appearance by them. The memorandum in writing can not be considered either as a service on them, or as an appearance by them to the action of the court. (1 Monroe, 22; 4 Littell, 268; 3 J. J. Marsh. 60.) It was irregular therefore in the Circuit Court to render judgment by default against these two defendants. The judgment here being irregular as to some of the defendants, must be set aside not only as to them, but as to all. There is no necessity to allege merits in the defence upon a motion to set aside a judgment which has been irregularly taken by default against some of the defendants. We do not pass upon the merits of the matters in dispute. The judgment below must be reversed, and the cause remanded for further proceedings ;

the other judges concurring.


author: RylaND, Judge,

text:
    Lovelace, Appellant, v. Stewart, Respondent.
    1. Until a sale of personal property is rendered complete by delivery and acceptance, it will remain at the risk of the seller.

      Appeal from Montgomery Circuit Court.

      T. Vannwearingen, for appellant.

      JBroadhead, for respondent.
   RylaND, Judge,

delivered tlie opinion of the court.

This is an action for the price of a negro woman and her child, alleged to have been sold by appellant to the respondent. The facts were found, or rather agreed upon, and upon those facts the court below gave judgment for defendant, on the ground that the sale was incomplete and so the risk of the property was with the seller. The negro woman died after the terms were agreed upon, but before the written documents were prepared and executed. The following, being the testimony of a witness sworn in the cause, are the facts agreed upon by the parties, and upon which the case was submitted to the court : “Walter Wallace, being sworn, states, I hired the woman and child of the plaintiff about Christmas, 1853. Whilst I had her at my house in Danville, and during the spring of 1854, the defendant, who also resides in Danville, on our meeting together in the street, asked me if I would become offended if he should purchase the woman of plaintiff. I answered, I would not. Either in that conversation, or during the same evening, I informed him that it was the opinion of my mother, the plaintiff, that she had not an absolute title to the slaves, but a dower right. About a week thereafter the defendant informed me that he had been out to see the plaintiff to purchase the woman, and that plaintiff was of the opinion that she had only a dower title, and would take $1200 for the woman and child. He said he thought it was too much for them, considering the character of tbe title. About two months perhaps after this, defendant met me in the street, and said his wife had no help, and asked me whether, if he would hire a certain girl (slave) from Edward Bush (a girl I once before had), I would exchange the woman I had of my mother to him for said girl, he paying me the proper difference in the hire. I told him I would do so. He accordingly hired the girl of Mrs. Bush, and we made the exchange— defendant taking the woman and child belonging to my mother. About this time, witness thinks a short time afterwards, but it may have been previous, defendant requested me to write to Virginia, and procure the record of partition of slaves of my father’s estate, and handed me one dollar to pay for copying the record. I accordingly wrote and procured the record, which record showed that the title of my mother was a dower title to the woman. I showed the record to defendant. Several weeks'subsequent to this, defendant remarked to me that he would give $200 if the title was clear to that negro. I remarked to him, rather in a jest at the time, that I would make it good for that Sum. Nothing further was said at that time. A few days after this, defendant came to me and said he would give me $100 to guaranty the title of the slaves in case he should purchase them. I accepted the proposition, and told him I would procure the relinquishment of the heirs in this estate, and would give him a guaranty against the interest of those in Virginia. He said then he would give my mother $1000 for the negroes. About one week subsequent to this, my mother came to town, and I informed her that Stewart, the defendant, was willing to pay her $1000 for the slaves, and would give me $100 to warrant the title against the children. She said she was willing to take it. On the same day I think I saw the defendant, and informed him that my mother was in town, and was willing to accept his proposition, and if he wished to purchase, he had better see her. On the same evening, he went down to my house, where my mother was, and there being company present, he said nothing about the matter, but came back the next morning. He remarked to my mother that he had learned she was willing to take bis proposition. Sbe answered that she was. Defendant then asked her what payment would suit her. She answered she was in no hurry for the money provided she was getting interest on the same. He then said he would pay her one half the purchase money the coming Christmas, and one half the following spring, to-wit, the spring of 1855. She said that would suit her. The defendant then took his hat, and starting from the house, turned and remarked, ‘ Walter,5 meaning witness, ‘will fix the papers.3I was then preparing to leave town, and replied, I could not do it now, but would do it on the following Monday, this being on Saturday. On Monday following, I had some engagements as school commissioner, and had to go from town; but before going, I wrote a bill of sale to be signed by her, and left it with my wife, requesting her to hand it to my mother. I did not return until towards the close of the week. A short time after my return, the woman was taken sick and died in the possession of defendant. Both the slaves remained in possession of defendant till the death of the mother. No writings were drawn on either side, that witness knows of, except the bill of sale, which was not signed.”

From these facts, it is obvious that something yet remained to be done before there was a complete sale of the slaves. The writings were to be prepared and executed. There was no delivery under this agreement of the slaves to defendant; nor was there any acceptance of them by defendant under this agreement. Something yet remained to be done. And during this time tho property can not in law be said to have passed out of the seller, and to become vested in the buyer free from the lien of the seller. The difficulty has arisen because the buyer happened to have possession of the slaves under and by virtue of a different, contract; but that, when properly examined, can not alter the effect of this agreement. The buyer depended upon some other act to be done before his title commenced. The seller knew some other act on her part was to be done before the sale was completed. Now the risk of the life of tbe slave is upon tbe seller until, by tbe full and perfect completion of tbe agreement, the title has passed out of the seller and vested in tbe buyer. Tbe doctrine upon this subject has heretofore been laid down by our court, in tbe case of Kirby v. Johnson, (22 Mo. 354,) in regard to the sale of other personal property. Had a constable levied an execution on the slaves as the property of Stewart, to satisfy some of his creditors, there can be no doubt that Mrs. Lovelace could have retained the title and the lien, because she had never parted with the possession under the agreement, and because other acts remained to be done before the title passed out of her — because, in short, the sale was not completed.

The judgment must be affirmed ;

the other judges concurring.


author: Scott, Judge,

text:
    Davidson, Respondent, v. Rozier, Appellant.
    1. An attorney at law has no authority to enter into a compromise binding upon his client.

      Appeal from Sí. Frangois Circuit Court.

    This cause was formerly in this court. (See 20 Mo. 132.) The petition is as follows : “ Plaintiff states that on the 14th day of February, 1851, at Grass Valley, California, he delivered to defendant five hundred and fifty dollars — five hundred of which was to be left at Potosí, Missouri, with Priscilla Davidson, wife of plaintiff. Plaintiff further states that defendant did not deliver said money, or leave on deposit the same, according to his undertaking, or any part thereof except one hundred dollars ; and that the sum of four hundred dollars is yet due plaintiff, and the interest, for which he asks judgment.”
    To this petition defendant answered : “ That the prayer of the plaintiff’s petition ought not to be granted, because he says that heretofore, to-wit, on the 18th day of June, 1851, the said plaintiff brought a suit against the said defendant for the same money sought to be recovered in this action, and the said demand of the said Davidson was fully paid off and compromised by this defendant, by and through Firman Desloge and Israel McGready, his agents, in this behalf, and the said suit dismissed in consequence thereof; the matter in controversy having been fully settled. He therefore prays,” &c.
    The finding of facts by the court is as follows : “ The court finds that on the 14th day of February, 1851, the plaintiff, at Grass Valley, in California, delivered to the defendant, then about returning to Potosí, Missouri, five hundred dollars, to be paid over to his wife, then in Potosí; that the defendant, not having paid it over when he arrived, a suit was commenced by the wife, in the name of the plaintiff, against him, in which William Smith, as attorney at law, was the acting attorney for the plaintiff, and brought the suit: one hundred dollars was paid before suit, and after he had instituted [suit] a compromise was made by him, as the attorney of the plaintiff, with the defendant, and an order drawn, of which the following is a copy : ‘ Mr. Jules Rozier will be pleased and he is hereby fully authorized to pay over to Firman Desloge the sum of $550, being the amount of money, you received from Benj. Davidson in California, and for which a suit has been instituted by Davidson against you in the Circuit Court of law for the county of Washington; which said suit is settled and compromised between the attorney for Davidson, in said suit, and the said Firman Desloge, wdth Israel McGready, having acted as agents for Jules Rozier. Said suit is accordingly dismissed by agreement, July 1st, 1851. [Signed] W. Smith, attorney for B. Davidson in the above suit.’ Which order was produced by the defendant on this trial. It was further proved that on the 5th day of July, 1852, Messrs. Desloge & McGready, claiming to be the partners of Davidson in the California adventure, commenced suit for an unliquidated balance due them out of the said partnership concern, and on the 5th November, 1858, obtained a judgment against him for the sum of seventeen hundred and forty-two dollars and costs ; thereupon the court declares that an attorney at law, as such-, has no authority to compromise the cause of action of his client by receiving a less sum, or otherwise disposing of the amount claimed; and that in the absence of proof of other authority the act of Smith was without authority of Ms client, and the compromise and payment under it is no bar to the plaintiff’s right of recovery.”
    Judgment was accordingly given for plaintiff; defendant appealed.

      Frissell, for appellant.
    Ferryman, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This case turns on the question whether an attorney at law, as such, can make a compromise for his client. An attorney is authorized to do those things only which pertain to the conducting of the suit. He has a right to enter into a reference, but no right to make a compromise. (Huston v. Mitchell, 14 S. & R. 309; Dodds v. Dodds, 9 Barr, 315; Holker v. Parker, 7 Cranch, 452.)

The record offered in evidence does not show that there was a final judgment between the parties in the first action. There -was only a non-suit taken, which does not bar a second suit. The other judges concurring, the judgment will be affirmed.


author: RylaNd, Judge,

text:
    Barksdale, Appellant, v. Appleberry, Respondent.
    1. Where, in a suit under article 8 of the practice act of 1849 (Sess. Acts, 1849, p. 82) for the possession of a slave, it appeared from the finding of the facts by the court, that the slave belonged to plaintiff, was in the possession of defendant, and had escaped therefrom after the commencement of the suit, but it did not appear whether the possession of defendant was wrongful or rightful; held, that the finding was defective, and that a judgment for defendant was erroneous.

      Jlppeal from St. Frangois Circuit Court.
    Ferryman, for appellant.

      Fr is sell, for appellant.
   RylaNd, Judge,

delivered the opinion of the court.

This is a suit in the nature of an action of detinue for recovery of a slave. The plaintiff alleges that she was the owner of the slave; that defendant got possession of him, and refused to deliver him to her, and that he wrongfully detains him to her damage, and prays for delivery of the slave or the value. An order for delivery was made. The sheriff returned that he could not find him.

The defendant filed his answer, denying the title of plaintiff to the slave, and denying her possession. He says the slave belonged to his father’s estate, and that the slave was in possession of Elizabeth Appleberry, the mother of plaintiff, and of defendant, as dower property of her husband’s estate in the state of Virginia; that when their mother moved to this state, she left the slave with the plaintiff in Virginia, as a loan and in trust for the parties interested, and not as plaintiff’s property ; that said slave ran away towards the latter part of the year 1850, and was taken up as a runaway in Mason county, Virginia, and put into jail, where he was kept for several months ; that defendant went to Virginia and took him out of jail, and brought him with him to this state, having paid the reward, fees and expenses, and that he ran away from him here without defendant’s fault, and with much trouble he has not been able to retake him or even to hear of him.

There was a trial by the court without a jury. The court found the facts as follows: That at and before the institution of this suit, defendant had possession of the negro boy in controversy, which is shown to have been, at the time, the property of the plaintiff ; that on the 18th day of August, 1851, plaintiff filed her petition in this cause, and sued out a writ in the nature of a writ of replevin in this cause, and the attorney of plaintiff, and Elisha Arnold, sheriff of St. Francjois county, in company proceeded to the house of defendant; that they found him at Perry’s Mines, a short distance from Appleberry’a house, perhaps three or four hundred yards from the mines. .The sheriff told him, his object in coming to see him was to take possession of the negro boy, and requested him to deliver him up. He hesitated at first, and expressed a desire to see a lawyer, and obtain advice before doing so, but finally consented, on the advice of a friend, to give bond for his forthcoming as required by law ; and, upon going with a friend to his house, before giving the bond, to look after the boy, he (the boy) could not be found, but had made his escape, perhaps, into Illinois, and has never since been seen or heard of, although defendant has made much effort to get possession of him. The court finds that the boy escaped without the fault or connivance of defendant. The boy was of the value of $800. Upon the above state of facts, the court declares the law to be as follows : That the possession, by the defendant, of the boy not being wrongful, but, as far as there was any evidence to the contrary, being rightful, he is only responsible for neglect in keeping the boy, or for conniving at his escape ; and there being no evidence of such connivance or ■ neglect, no liability attaches to him for the escape of the boy, and plaintiff can not recover his value or any other sum on that account.”

From this finding it will be seen that the property is found to belong to plaintiff, and was found to be in defendant’s possession ; but, whether there wrongfully or rightly, is not found as a fact by the court. When the court commences to declare the law upon the facts found, the statement that the possession by defendant of the boy not being wrongful, but, as far as there is any evidence to the contrary, being a rightful possession,” is neither a proper finding of fact, nor a declaration of law. The court should have found explicitly whether defendant’s possession was rightful or wrongful possession, and not say, “as far as there was any evidence to the contrary, a rightful possession.” It was either one or the other, and the court should have found 'which. The liability o £ defendant in this case, and the extent of such liability, depends upon the fact of defendant’s possession being wrongful or being rightful; therefore it was a most material and important fact to be found, and not being found, this judgment must be reversed.

If the party unlawfully took possession of plaintiff’s slave under ordinary circumstances he would be responsible for the slave. And, admitting the matter set up in the answer as to the running away of the slave, may be treated as a plea of puis darrien continuance., yet it cannot constitute, it would seem, a bar to the whole action, but at most only a defence to a recovery of the slave or his value, leaving undefended the right for damages on account of detention down to the running away. Indeed, the better opinion seems to be that, if -the defendant unlawfully took possession of the slave, he must answer for him notwithstanding his escape. In Carrel v. Early, (4 Bibb, 270,) one of the propositions was, that the slave in question having died, without the fault of defendant, after the commencement of the suit, (detinue,) plaintiff’s right to recover was thereby defeated. Chief Justice Boyle said that this proposition at first view presented considerable doubt; but, upon further reflection, we are of opinion it can not be maintained. Were the recovery of the specific thing the absolute and sole object of the action of detinue, the destruction or annihilation of the thing would necessarily defeat the action ; but as the object of the action is to recover the thing only upon condition that it can be had, and if not, then its alternate value, it results that the action can not be defeated by the destruction of the thing, unless it was under circumstances that would excuse defendant from being responsible. He who wrongfully detains the property of another, does it at his own peril, and will be responsible to the proprietor .though the property should be destroyed by accident or taken from him by violence. Thus it is held that all bailees are responsible for losses by casualty or violence after their refusal to return the thing bailed on a lawful demand.” (Jones’ Law of Bailments, 94.)

In Caldwell v. Fenwick, (2 Dana, 332,) it was held that detinue can not be maintained where the thing sued for has ceased to exist when suit was brought, as for a slave after his death, though it may be maintained when defendant has parted with the possession of the chattel sued for, of where it was in being when the action was instituted, but perished afterwards.” See Gentry v. Burnett, (6 Monroe, 115,) where it is said to be very problematical whether the party can plead, pending the action of replevin, the death of the slave puis darrien continuance. In Austin’s Executors v. Jones, (1 Gilmore, 341, in detinue,) the jury having found for plaintiff the slave mentioned, &c., but that she having died since suit was brought, the court nevertheless gave judgment for the slave or for her value, the death not being put in issue by the plea puis darrien continuance. In Harle v. Hill et al., (13 Mo. 612,) it was said by this court that, as a dead slave was of no value, plaintiff in detinue should recover fór use and hire, as the measure of damages up to the time of death; admitting, however, that the right to recover for the slave (unless a special plea of death since the last continuance be pleaded and found for defendant) is supported by the weight of authority.

I have thus mentioned the authorities on the sn upon a trial anew the point may become v®ryVimportant. Judgment below is reversed; the other judg Cause remanded.


text:
    Schropshire, et al., Appellants, v. Loudon et al., Respondents.
    1. An instrument in the form of a will, under seal, attested by two witnesses, and acknowledged before the appropriate circuit court, but not probated, though inefficacious as a will for want of probate, may yet operate as a valid act of emancipation from slavery under section 1 of article 2 of the act concerning slaves. (R. C. 1845, p. 1019.)

      Appeal from Shelby Circuit Court.

    This was a suit for freedom, originally brought in the Schuyler Circuit Court, from which court it was removed by change of venue to the Circuit Court of Shelby county. Upon the trial to establish the freedom of plaintiffs, the following instrument in writing, executed by Elizabeth Schropshire, was offered in evidence :
    “ State of Missouri, county of Schuyler. I, Elizabeth Schropshire, of the county of Schuyler, and state of Missouri, being of lawful age and sound mind, do hereby make and publish this, my last will and testament, as follows, to-wit: First, I desire that my funeral expenses and all my other debts be first paid; secondly, I give and bequeath unto Titus my black man, Ellen my black woman, the wife of the said Titus, with all their children, viz., Monroe, Randolph, Wilson, Mary Jane and Josephine, with each and every child that may hereafter be born, their freedom at my death; third, I do hereby appoint Stephen C. Thompson the executor of this, my last will and testament. In testimony whereof, I hereunto set my hand and seal this 25th day of June, 1846. Elizabeth Schropshire, (l. s.) Attested in the presence of the testatrix, S. C. Thompson, A. T. Hite, A. J. Towles.”
    In connection with this instrument, plaintiffs’ counsel offered to prove that Elizabeth Schropshire appeared in the Circuit Court of Schuyler county, at the September term of said court, 1847, and acknowledged said instrument of writing as her deed of emancipation of. the plaintiffs ; also that the acknowledgment of said instrument by the said Elizabeth was omitted to be entered on the record of said court by accident; also introduced S. C. Thompson, A. T. Hite and A. J. Towles, and offered to prove by them that they are and were the attesting witnesses to said instrument of writing, and attested the same, as such witnesses, at the request of said Elizabeth, in her presence, on the day of the date thereof ; and that said Elizabeth departed this life before the commencement of this suit; that the plaintiffs are the persons named in said instrument of writing, and that they had been in the possession of said Elizabeth and claimed by her as her slaves for some fifteen years before the date of said instrument of writing. Plaintiff also offered to prove the genuineness and authenticity of the following certificate, &c.: “ State of Missouri, county of Schuyler, ss. In the Schuyler Circuit Court, April term, 1850. It is ordered by the court that the clerk make the following entry nunc pro tunc of an acknowledgment of a deed of manumission by Elizabeth Schropshire, at the September term, 1847, omitted on the record of said court at that term, to-wit: ‘Now at this day comes Elizabeth Schropshire and acknowledges a deed of manumission by will to certain slaves therein mentioned, to-wit : Titus, Ellen, Monroe, Randolph, Wilson, Mary Jane, and Josephine, and their future increase, to be her act and deed for the purposes therein mentioned.’ In witness whereof, I, Isaac N. Eby, clerk of said court, hereunto set my hand and private seal (there being as yet no official seal provided for said county) at office, in Lancaster, this sixth day of April, 1850. [Seal.] I. N. Eby, clerk, by J. Parks, deputy.”
    The court rejected all the evidence offered on the part of plaintiffs, and the case being submitted to the jury, a verdict was rendered for defendants.

      Glover & Richardson, for appellants.
    I. The ruling of the Circuit Court, in refusing to allow the appellants to introduce the evidence they offered, can only be sustained on the hypothesis that the will of Mrs. Shcropshire is inoperative without being regularly probated. We submit that at common law, in order to give a will effect to pass land or personalty, it was not necessary to make probate of it, although the probate, when made, was conclusive proof of the will. (Bagwell v. Elliott, 2 Rand. 196.) The courts, in many of the states, have decided that a will is inoperative to pass either real or personal estate until it is first proved in the probate court; but all such decisions are predicated on statutes that expressly provide that “ no will shall be effectual to pass either real or personal estate unless it shall have been duly pi’oved and allowed in the probate court.” The question now is, has the rule at common law been altered in this state by statute ? There is no provision in our law like that in other states on which the decisions are supported that declare unprobated wills inoperative. Particular courts arid officers have by law exclusive jurisdiction of the probate of wills, but their jurisdiction is only exclusive as to the conclusive character of the probate. It is nowhere declared that a will can not be used in evidence as a muniment of title without being probated, But the failure to probate requires a party claiming under a will to make the necessary proof to establish it in a collateral proceeding. The advantage of reading a will, without other proof, -is secured by having it probated and recorded, and it is established so that it can not be controverted in a collateral proceeding ; but the failure to have it probated imposes no .penalty other than to deny a party the advantage he would otherwise have secured.

      E. Pratt and Wm. M. CooJee, for respondents.
    I. The instrument offered in evidence could not operate as a will for want of probate, nor could it operate as a deed of manumission. If it had been admitted, the verdict rendered would not have been different. It would not have authorized a finding for plaintiffs. So that it is immaterial whether its admission was right or wrong.
   Scott, Judge,

delivered the opinion of the court.

The only question presented by the record for our determination is, whether the paper offered as the instrument of emancipation, together with its acknowledgment, was competent evidence to establish the petitioners’ right to freedom.

The first section of the second article of the act concerning slaves provides that “ any person may emancipate his or her slave by last will, or any other instrument in writing under hand and seal, attested by two witnesses, and proved in the circuit court of the county where he or she resides, or acknowledged by the party in the same court.” So an act of emancipation may be effected by will, or any other instrument of writing. We all know what is meant by the term will. It is an instrument disposing of one’s proprerty at his death, but having no efficacy until that time; being revocable. It can not be maintained that the paper in this case could be effectual as a will to emancipate the plaintiffs. As a will it could confer no right, nor be of any force for any purpose, until it was admitted to probate. This is as well settled a principle as any in the law. Rut while the paper is inefficacious as a will, we see no reason why it is not an instrument in writing within the meaning of the law. The statute intended that slaves should be emancipated in one of two ways, by will or by an act inter vivos. We have seen what is a will in the contemplation of law. Now, the word “other” before the word “instrument” in the act does not refer to the form but to the effect of the instrument. If the party wished to emancipate his slaves by an act inter vivos, it was not designed to prevent him from using an instrument in the form of a will, if it had the other requisites necessary to effect his object. The law permitting emancipation to be conferred by any instrument of writing, there is no reason why a written paper, in the form of a will, if sufficiently expressive of such intent, should not be as effectual for that purpose as a paper in any other form. It is in the words of the law ; it is in the meaning of the law. What more can be required ? The paper then offered in evidence, being an instrument in writing sufficiently expressive of an intent to emancipate, being under seal, attested by two witnesses, and openly acknowledged in the Circuit Court by the emancipator, should have been received in evidence as a valid act of emancipation. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: Eye and, Judge,

text:
    Hayden’s Administrator, Respondent, v. Hayden’s Administrator and others, Appellants.
    1. In order to entitle a widow, under section 2 of the dower act, (R. C. 1845, p. 430,) to a share of slaves belonging to the deceased husband equal to the share of a child of such deceased husband, it is not necessary that she should make an election so to take.

      Jlppeal from Pike Circuit Court.

    This was an application to the Probate Court of Pike county, by the administrator of Sarah Ann Hayden, deceased, widow of James It. Hayden, praying that a child’s share, one-fourth, of a sum of money existing in the hands of the administrator of said James E. Hayden, (who, with the children of said Hayden, were made parties defendant to this proceeding,) and which sum of money was the proceeds of a sale of slaves belonging to the estate of said Hayden, and was not needed for the payment of debts, might be paid to him as the administrator of said widow. The facts sufficiently appear in the opinion of the court.

      A. H. Buckner, for appellant.
    I. In order to entitle plaintiff to a recovery, there should have been an election on the part of the widow.

      Broadhead, for respondent.
   Eye and, Judge,

delivered the opinion of the court.

James E. Hayden died intestate subsequent to the year 1850, leaving a widow and three children. Shortly after the death of James E. Hayden, his widow, Sarah Ann Hayden, died intestate. The children were by a former marriage. The estate of James E. Hayden was administered upon by McKinley Hays, and the estate of Sarah Ann Hayden, his widow, by Thomas Fletcher. The children of James E. Hayden apply to the Probate Court of Pike county for a partition of the slaves of their deceased father’s estate, and the question here is, what interest the administrator of the widow is entitled to in these slaves. The widow never made any election as to what interest in the slaves she would take. The Probate Court decided that she was entitled, without any election, to a child’s part, that is, one-fourth, in the present case. An appeal was taken to the Circuit Court, where this decision was again made. The correctness of this decision is the only question here.

By the second section of the dower act of 1845, the widow is “ entitled absolutely to a share in the slaves, and other personal estate, belonging to the husband at the time of his death, equal to the share of a child of such deceased husband,, or at her option to one-third part of the slaves of such husband during her natural life, and one-third part of the other personal 'estate, absolutely ; in either case subject to the payment of her husband’s debts.” By the 4th section, “when the husband shall die, leaving such child or descendants, but not by his last marriage, his widow may, in lieu of dower, elect to take, in addition to her real estate, the slaves and other personal property in possession of the husband, that came to him in right of the wife, by means of the marriage.” By these provisions, it is plain that the right of the wife to a share in the slaves and other personal estate, equal to a child’s share, does not depend upon her election. She has an option to reject this provision and to choose another; but if she dies without making use of this privilege, the administrator of her estate can claim this child’s part as her property. By the dower law, the wife’s right to dower vests immediately upon the death of the husband, both as to realty and personalty. (Hastings v. Myers’ adm’r, 21 Mo. 519.)

The court below, "then, decided this question correctly. The right of the widow to a share in the slaves, equal to a child’s part, does not depend upon any act to be done by the widow; the right vests immediately, and, unless she chooses to take otherwise, mo one can choose for her. The law confers on her a child’s part, but gives her the option to reject this part. Now, unless this will to choose is exercised, the child’s portion becomes the widow’s portion. She must do something indicative of casting off this right, otherwise it attaches and remains fixed.

Let the judgment below be affirmed ;

the other judges concurring.


author: Rylakd, Judge,

text:
    Matlock, Appellant, v. King, Respondent.
    1. It is error to dismiss an appeal from a justice of tlie peace for “ any error, defect, or other imperfection in the proceedings of the justice.”

      Appeal from Crawford Circuit Court.

      C. Jones, for appellant.

      J. JR. Jlrnold, for respondent.
   Rylakd, Judge,

delivered the opinion of the court.

The plaintiff below recovered a judgment against the defendant before a justice of the peaee. The defendant appealed to the Circuit Court. In the Circuit Court, the plaintiff (appellee) obtained a rule on the justice to perfect the transcript, which the justice did by entering a formal judgment on the verdict. The appellant, the defendant below, moved to dismiss the plaintiff’s suit, as appears by the bill of exceptions. This motion was sustained and the suit dismissed. The plaintiff excepted, and brings the case here.

It was error for the court to dismiss the plaintiff’s suit. When the appeal was taken, and the justice had filed his transcript with the clerk, it was the duty of the court to proceed to hear, try and determine the cause anew, without'regarding any error, defect or other imperfection in the proceedings of the justice. (R. C. 1845, p. 670.) The Circuit Court should have overruled the appellant’s motion, and proceeded to try the case over again on the merits. On appeals, the Circuit Court does not sit to find out the errors and irregularities of the proceedings before the justices of the peace, but to disregard all errors and imperfections, and try the cause anew. The same cause must be again tried, but tried on the merits.

The judgment must be reversed, and the cause remanded, with direction to the court below to proceed to try the cause on the merits ;

the other judges concur.


author: LEONARD, Judge,

text:
    Phillips, Respondent, v. Towler’s Administrators, Appellants.
    1. In an action, under section 35 of article 9 of the act concerning crimes and punishments (R. C. 1845, p. 414), against the owner of a slave to recover damages sustained through the burning of a building, &c., by such slave : held, that a confession by the slave of the burning is inadmissible in evidence.
    2. It is also incompetent in such a case to show that (he remark was made in the presence of the owner of the slave, that the slave had burned the building (and had confessed it, and that he (the owner) had made no reply or denial.
    3. An action under section 35 of article 9 of the act concerning crimes and punishments (R. C. 1845, p. 414,) against the owner of a slave, will survive against his administrators.

      •Appeal from, Lewis Circuit Court.

    This was an action against Edward Towler to recover compensation for injuries sustained in consequence of the act of a slave of defendant in setting fire to and burning a stable, &e., belonging to plaintiff. The defendant dying, the suit was revived against his administrators. On the trial to prove that the slave had ’set fire to plaintiff’s stable, certain confessions made by her were admitted in evidence against the objection of defendant’s counsel. A witness also testified as follows : “ Mr. Robert Towler, son of Edward (the original defendant), entered the room where Mr. Edward Towler and I were, and, with a smile on his countenance, said, 1 does it not beat any thing in the world ? that negro burnt Phillips’ stable, and has confessed it.’ Mr. Edward Towler made no reply; seemed to be cut down, and went out of the room.” Defendants excepted to the admission of this testimony. Defendants bring the case to this court by appeal.

      Pratt and Lipscomb, for appellants.

      ¿2. H. Buckner, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

The slave’s confessions were improperly admitted. They were mere second-hand evidence, and of the most exceptionable character. Such statements, if made by persons the most trustworthy, and under circumstances furnishing the strongest corroboration of their truth, could not be received. Legal evidence consists in facts sworn to by witnesses from their own personal knowledge, and excludes all personal information derived from others, however worthy of credit they may be. Here, however, the person from whom the information came was a slave, one forbidden by law to appear as a witness for or against a white person. And this principle of exclusion, which has been adopted into our written law-, is grounded on the degraded condition of this class of persons, and the interest they may have to fabricate falsehoods and conceal the truth. It came from the Roman law, and has prevailed in all the European colonies in America, wherever slavery has existed. It is acted on in all the American slave states, although no enactment to that effect exist, and may be considered the customary law applicable to the institution of slavery. Where African slavery exists, the exclusion has generally extended also, as under our statute, to all individuals of the slave race, whether bond or free. (1 Har. & McHen. 562; White v. Helmes, 1 McCord, 430; Stephens on West India Slavery, 168.)

The attempt to bring these statements within the case of Fackler v. Chapman, (20 Mo. 252,) can not prevail. There, goods had been recently stolen and concealed, and the information given by the defendants as to the place of concealment, connected with the fact that they were there found, was received to establish their guilty knowledge, and in this manner connect them with the theft. No credit whatever was given to their statement as a mere narrative of facts, and if the testimony had stopped short there, these statements of themselves would have been clearly inadmissible. In the present case, however, faith must be given to the girl’s story as such, or the testimony avails nothing ; and the fact that it was corroborated in some of its particulars — for instance, as to the particular corner of the stable in which the fire was put, which is relied upon for the purpose of rendering it complete evidence — can not, it is very manifest, have any such effect.

The court erred also in allowing the remarks of Robert Tow-ler, made in the presence of the intestate, to go to the jury. They were to the effect that “ the girl had burned plaintiff’s stable, and confessed it.” The intestate, it seems, made no reply, and this was received as an admission of the fact on his part, implied from his supposed acquiescence in what was thus said in his hearing. In regard to these admissions inferred from acquiescence in the verbal statements of others, on the maxim “ Qui tacet consentiré videtur,” it has been most justly remarked, that nothing can be more dangerous than this kind of evidence, and that it ought always to be received with caution, and never admitted at all unless the statements be of that kind that naturally eall for contradiction — some assertion made to the party with respect to his rights, which by his silence he acquiesces in. (Morre v. Smith, 14 S. & R. 392). A distinction is taken between declarations made by a party interested and a stranger, and it has been determined, that, while what one party declares to the other, without contradiction, is admissible evidence, what is said by a third person may not be so (Child v. Grace, 2 Car. & Payne, 193); and we are also told that the silence of the party, even when the declarations are addressed to himself, is worth very little as evidence, when the party has mo means of knowing the truth or falsehood of the statement. (Hayslep v. Gymer, 1 Ad. & El. 162-5.) The allowance of the proof here was palpably wrong. The substance of the remark was, that the girl had confessed that she burned the stable, and was not understood by tbe father as an assertion on the part of the son of the girl’s guilt. Thus understood, it called for no reply. The father, no doubt, believed that the girl had made the confession stated by his son, and his silence, if it admitted of any thing, was only an admission to that extent, and can not, without palpable injustice to him, be construed into an admission that his slave was guilty of the fact.

We remark, in conclusion, that the cause of action clearly survived against the estate of the deceased owner, under the provisions of the statute on this subject. (R. C. 1845, p. 76, § 25, and p. 414, § 35.)

The judgment is reversed, and the cause remanded.


author: LEONARD, Judge.

text:
    Wilcoxson et al., Appellants, v. McBride, Respondent.
    1. A bill of exceptions can not be allowed and signed at a term subsequent to that at which the trial is had without the consent of the opposite party.

      Jlppeal from Monroe Circuit Court.
    A motion was made in this cause in the Supreme Court by respondent’s counsel to strike out the bill of exceptions on the ground that it was allowed and signed out of time. It appears that judgment was rendered November 18th, 1854, at the November term of the Monroe Circuit Court; tha't a motion for a new trial was overruled November 20th; that on the 21st of November, 1854, leave was, on motion, granted to plaintiffs to file their bill of exceptions at the next term of the court; that on the 18th day of June, 1855, during the June term, leave was again granted to plaintiffs to file their bill of exceptions at the next succeeding term of the court. No consent of the defendant appears to have been given to the granting of time to plaintiff. On the 17th day of November, 1855, during the November term, there was made the following entry : “ Now at this day came the plaintiffs, by their attorneys, and on their motion leave is granted them to file herein their bill of exceptions, to the filing of which said bill of exceptions the defendant, by his attorney, objects ; and the court, after hearing the said objections and the argument of counsel thereon, and being fully advised of and concerning the matters and things stated in said objection, overrules the same; to the overruling of which the defendant, by his attorney, excepts.”

      Glover & Richardson, for appellant.
    T. T. Gantt, for respondent,
    cited the following authorities : 21 Mo. 122 ; ib. 167 ; ib. 272-569.
   LEONARD, Judge.

The bill of exceptions was not filed in season, nor is any reason shown for the omission, and, according to the settled course of decision in this court, we can not regard it as a part of the record.

The matters insisted upon for the reversal of the judgment appear from the bill of exceptions only, and the judgment must therefore be affirmed.


author: Ryland, Judge,

text:
    Baker, Appellant, v. Blades et al., Respondents.
    1. In order to entitle the assignee of a note not negotiable to sue the assignor, without fi. st instituting a suit against the maker, it must appear that such suit would be wholly unavailing.

      Jlppeal from Montgomery Circuit Court.

      •flL. D. Glover, Glover & Richardson, for appellant.

      G. Porter, for respondents,
    cited Pillard v. Darst’s adm’r, 6 Mo. 358 ; Hays v. Bell & Williams, 16 Mo. 496 ; Collins v. Warburton et al., 3 Mo. 146 ; Pococke v. Blount, 6 Mo. 338, 345 ; Ricketson et al. v. Wood et al., 10 Mo. 547 ; De-lany’s ex’r v. Kerr, 10 Mo. 558.
   Ryland, Judge,

delivered the opinion of the court.

The question in this case is, whether an assignee, who could have recovered part of his debt of the makers of the note, was bound to sue to entitle him to his remedy against the assignor. The suit here was by the assignee against the assignors. The court gave the following instruction for the plaintiff: “Unless the jury believe from the evidence that a sufficient amount could be made out of Smith and Britt, the makers of the note, to pay for the trouble and expense of a suit, they must find for the plaintiffs.” The court also gave the following instructions for the defendants : “1. The plaintiff can not recover in this case without having instituted and prosecuted suit against the makers at the first term of the Circuit Court next after the note fell due, unless it appear from the evidence in the cause that the makers of the note, and each of them, were so insolvent that a suit would have been wholly unavailing ; and it is not necessary that it should appear that the whole amount of said note could have been made, if it appears that enough of the debt could have been made by suit to make it worth a suit, in case the plaintiff had had no other resource except the makers of the note to make his debt out of. 2. The fact that the makers of the note had not, when the note fell due, visible property equal in value to the amount of their indebtedness, is not of itself sufficient evidence to establish the insolvency of the makers, but it may be considered in connection with other evidence in the cause. 8. If the makers of the note were not so insolvent, when the note sued on fell due, as to make it not worth while for the assignee, Baker, to bring suit against the makers (Britt and Smith) in case he had had no other means of collecting the note except out of said makers, then the plaintiff is not entitled to recover of the assignors, the defendants herein, and the jury should find for the defendants.” The court refused to give the following for the plaintiff: “1. If the jury believe that only a part of the amount of the note could have been made out of the makers, then the plaintiff is entitled to recover all that would not have been made out of the makers. 2. If the jury believe that the makers had no visible property at the time the note fell due, it is prima facie evidence of insolvency.” The jury found for the defendants. The court overruled the motion for a new trial, and the plaintiff brings the case here by appeal.

The question presented by this record has oEten been before this court, and we consider it settled by its repeated decisions. (Collins v. Warburton et al., 3 Mo. 145; Pococke v. Blount, 6 Mo. 338; Pillard v. Darst’s adm’r, 6 Mo. 358; Ricketson et al. v. Wood et al., 10 Mo. 547; O’Fallon, exec’r of Delaney, v. Kerr, 10 Mo. 553; Clemens v. Collins, 14 Mo. 604; id. 11 Mo. 320; Stone v. Corbett, 20 Mo. 350.)

We do not conceive it necessary to examine further authorities on this subject. The books of reports of Kentucky and Virginia will furnish them to the curious, who wish to investigate this matter further. The judgment below must be affirmed ;

Judge Leonard concurring.


text:
    Bartlett, Respondent, v. Draper et al., Appellants.
    1. In order to constitute such a possession as 'will Bustain an action of forcible entry and detainer, it is not necessary that the party should stand on the land, or keep a servant or agents there; but any act done by himself on the premises, indicating an intention to hold the possession thereof to himself, will be sufficient to give him the actual possession.

      •Appeal from Pike Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Broadhead and Hunt, for appellants.
    I. There is no evidence to support the verdict. The action is an action of forcible entry and detainer under the 2d section of the act. To constitute a cause of action under this section, the entry must either be by force or strong hand, &e.; or else the entry must be peaceable (R. C. 1845, p. 512), and then a turning out by force, or frightening by threats or other circumstances of terror, the party out of possession. In this case there was no evidence of either, or any evidence tending to show that the defendants were guilty of either.

      II. The court erred in giving tbe 2d instruction asked by tbe plaintiff, and in refusing to give tbe 2d instruction asked by tbe defendants. Tbe giving of the 2d instruction for tbe plaintiff, although it may be true as a legal proposition, was nevertheless in this case calculated to mislead tbe jury. To constitute actual possession, it is not necessary that a man should always be on bis land, or keep some one always there. He may leave it temporarily and still be in tbe actual possession. Business or pleasure may cause a man to leave bis bouse or bis farm for a few days or a few weeks, and be may during all this time be very properly considered in actual possession. But if be puts a few posts on a vacant lot, and then leases it for six months, exercising in tbe, mean time no acts of ownership over it, and using it for no purposes whatever, be can hardly be said at the end of that time to be in actual possession of tbe lot.
    III. But even admitting the plaintiff was in actual peaceable possession of tbe premises, though not upon the ground at the time of the entry by defendants, still the entry of the defendants was peaceable, and the holding over, if wrongful, was without force, and a demand in writing should have been given for the possession of the premises. If liable at all, the defendants were liable for disseizin under the provisions of the 3d section of the act, and in that case they should have been sued for unlawful detainer after demand made in writing, and not for forcible entry and detainer. (11 Mo. 354 ; R. C. 1845, p. 512.)

      Jl. H. Buckner, for respondent.
   RylaND, Judge,

delivered the opinion of the court.

This was an action of forcible entry and detainer by Bartlett against the defendants and others for two lots of ground in the town of Louisiana. The plaintiff had judgment before the justice. The defendants appealed to the Circuit Court. On the trial in that court the plaintiff again had a verdict and judgment. After the evidence was closed on both sides, the court gaye three instructions for the plaintiff, and one for the defendants, and refused to give the other instructions asked for by defendants. The defendants excepted to the giving of the instructions for the plaintiff and the refusal to give theirs. The questions made in this court are as to the propriety of the second instruction given for the plaintiff, and the refusal to give the defendants’ second instruction.

As to the point made by the appellants’ counsel, that there is no evidence to support the verdict, we pass that by, remarking that, after what has been so often said by this court in regard to a want of evidence or no evidence to support t’ e verdict, we are somewhat surprised that such a point should be made before us. We do not retry the case here upon the evidence. We will look to see if there be evidence to warrant an instruction which should have been given, before we reverse because it was not given. But whether the evidence supports the verdict is a question that can, with more profit, be addressed to the lower courts who hear and try the cause.

The second instruction asked by plaintiff, and given to the jury, is as follows : “ In order to constitute possessicn in plaintiff, it is not necessary that he should stand on the land, or keep servants or agents there ; but any act done by himself on the premises indicating an-intention to hold the possession thereof to himself , will be sufficient to give him the actual possession.” The appellants object to this instruction, because it was calculated in this case to mislead the jury. They grant it may be true as a legal proposition. Now, in this case, we think the instruction proper and correct. The plaintiff had put a tenant on his lots. The tenant had remained there for three years or thereabouts, and had built a stable on one of the lots, and fenced them in; the plaintiff being on a trip to California. The tenant sells his right to the stable to the defendants, Drapers — just such right as he had as a tenant of plaintiff, and informs the defendant (Draper) of the plaintiff’s possession by him. The fence is afterwards thrown down and the stable not used, and the lots become vacant. The plaintiff then has posts hauled and placed around three sides o£ these lots for the purpose of enclosing them. The defendants make their agent throw these posts out of the way and fence up the lots. While they were about this work, the plaintiff orders them to stop, saying that the lots were his, and whoever put a fence there it would be taken by him. The defendants are informed of this; they order their workmen to go and fence up the lots, throwing the plaintiff’s posts some outside and letting others stay within. Now we can not see how this instruction could mislead the jury in this case. It was therefore proper.

The second instruction asked for by defendants, and which the court refused, is as follows: “That if they believe from the evidence that Bartlett had posts put on the lot in October, 1852, and from that time till April, 1853, Bartlett exercised no other acts of possession, the jury may presume that Bartlett abandoned his possession ; and if he had abandoned his possession at the time defendants entered, then they must find for the defendants.” This instruction was properly refused. Nothing warrants the courts below in taking up parts and parcels of the facts in proof and leaving out other parts ; and then saying to the jury, if these facts be in proof, you may presume such other facts. Such instructions are well calculated to mislead the jury. There is no foundation for such a course here. It could not seriously be contended that the owner had abandoned his property in the posts, out of which he intended to make in part his fence, because he failed to put them up and nail planks to them from the month of October to the following April. It would be absurd to entertain such an idea.

There is nothing in the third and fourth points relied on to reverse this judgment. If entering upon a person’s lot and hauling timber thereto, pulling down his stable and throwing off his posts and putting up a fence thereon, against his orders, be a possession in peace and without force, then the terms are grossly misunderstood. Let the judgment below be affirmed ;

the other judges concurring.


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    Arnold, Defendant in Error, v. Palmer, Plaintiff in Error.
    1. Where, on account of a failure to reply within the time required by law to an offset pleaded, judgment by default was regularly rendered taking the offset as confessed, and the court, on the motion of plaintiff, set aside this judgment by default, neither the mofion to set aside nor the accompanying affidavit showing a meritorious defence to the offset pleaded: held, that the court had in this particular exceeded the limits of a sound discretion.

      Error to St. Louis Court of Common Fleas.

    The facts sufficiently appear in the opinion of the court.

      J. B. King, for plaintiff in error.

      T. Polk, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This was an action in the St. Louis Court of Common Pleas by John B. Arnold against JohnB. King and Thea Maria Palmer, on a promissory note executed by said John B. King and Thea Maria Palmer to Horatio Arnold, for the sum of five hundred and sixty-five dollars and twenty-two cents, payable one day after date, and dated April 3d, 1852 ; which note was assigned on April 29th, 1852, to the plaintiff by said Horatio Arnold. The writ was returnable to the September term of the court in the year 1852; but not being executed, an alias writ was issued returnable to the first Monday in February, 1853. On the return day of the writ, being the first Monday and the 7 th day of February, 1853, the defendant Palmer filed her answer, alleging that the said note was obtained from her by fraud, and through false and fraudulent representations ; also setting up a set-off against the note. This set-off is thus pleaded, viz : “ The said plaintiff owes said defendant for wood sold off said land of hers, occupied by plaintiff during the years 1851-2, the sum of four hundred and seventy dollars. The said plaintiff owes defendant for injuries done to the timber growing on said land, cut by him without her consent and against her express orders, the sum of five hundred dollars. The plaintiff owes defendant for the rent of said house and land for 1852, the sum of one hundred dollars, making in the aggregate the sum of one thousand and seventy dollars,” and “ asks that judgment be rendered against the plaintiff in her favor for the difference between the note and the set-off pleaded, to-wit, the sum of five hundred and seventy dollars.” This answer containing the set-off being filed the 7th day of February, that being the first day of the term, and the plaintiff having failed to file his replication to the set-off within two days thereafter, as required by law, the defendant moved the court that her set-off be taken as confessed against said plaintiff ; this motion was sustained by the court, and it was accordingly ordered that said set-off be taken against the plaintiff as confessed, for the want of such replication. On the 19th, the plaintiff filed his motion by his counsel, to' set aside this judgment by default entered as aforesaid on the set-off pleaded in this action, which motion is as follows : The plaintiff moves the court to set aside the judgment heretofore rendered in this cause, taking the pretended set-off pleaded herein as confessed, for the following reasons : 1. The said answer containing the said pretended set-off was filed on the 14th [7th] day of February, 1858, the first day of the term, and the said judgment taken on the 10th day of said February, when, by the law of the land, said judgment ought not and could not be taken. 2. The said judgment was irregularly, illegally and improperly taken. 3. The plaintiff had no notice of the filing of said plea of set-off. 4. The plaintiff had no legal or sufficient notice of the filing of the said plea of set-off. 5. For the reasons contained in the subjoined affidavit of Trusten Polk.” “ Trusten Polk makes oath and says, that he is an attorney and counsellor at law and officer of this court; that during the last term of this court and on or about the --■ day of-, 1852, he was retained by the plaintiff as his attorney and counsellor in this cause ; that he has learned for the first time this morning, the 18th day of February, that the said defendant Palmer has filed in her answer in this cause, a set- off, on which judgment was taken by confession on the 10th day of February, A. £>. 1858. Affiant states that previous to the calling of the law docket, as he be» lieves, on the first day of this term, at which said docket was called, he examined said docket carefully, noting, as he believes, every case then set down on said docket, and did not observe any entry on the said docket of said set-off in this ease ; and he hereby refers the court to the entry of the said cause on the attorneys’ law docket. He believes he should not have observed the statement made in the entry of this cause on the law docket as to set-off, if the clerk had not informed him of the action had by the court upon the same.” The record shows that the defendant Palmer filed her answer containing the set-off on the 7th of February, the first day of the term, and that in compliance with the rule of the court there was entered on the back of said answer the words, “ set-off pleaded,” and likewise the same entered upon the motion docket of said court. The court sustained the motion of the plaintiff, and set aside the judgment by default, and the defendant Palmer excepted and filed her bill of exceptions. The plaintiff dismissed his suit as to the defendant King.

The only matter saved by the defendant below in her bill of exceptions is the ruling of the court on this motion of plaintiff to set aside the judgment by default. We can not take notice of the various motions and dispositions made of them as noted by the clerk; they are not properly parts of the record of thig cause ; and such motions and rulings of the court thereon must be saved by exceptions properly taken, and thus be placed on the record and become parts of it, before this court can notice them. All, therefore, about striking out parts of the answer and striking out the set-off and for a review of the finding must be disregarded by this court. Was the judgment by default in favor of defendant Palmer on the set-off in her answer against the plaintiff properly taken ? The answer was filed on the first day of the term, and the plaintiff was bound to file his replication to the set- off contained in the answer within the next two days thereafter. The respondent’s counsel contends that as the defendant was allowed two days to file her answer and set- off, the plaintiff was allowed two days more after the lapse of the first two before he was required to reply to the set-off. But such is not our opinion. This point was expressly ruled against the view taken by respondent’s counsel, in the case now before us, in the case of Beach & Eddy v. Curle’s adm’r (15 Mo. 115). The replication must be filed within two days after answer and set-off. The judgment taking the set-off for confessed was not rendered until the 10th day of February, the 4th day of the term; so there were two days between the filing of the set-off and the judgment taking the same for confessed. It was not taken, then, too soon ; the time for allowing replications had elapsed before the judgment by default was rendered on the set-off. Now, although this court generally refuses to interfere with the exercise of the discretionary power of the inferior courts, yet cases may occur in which such discretionary use of power may not only be questioned, but overruled in the promotion of justice and right. Let us consider this base for a moment. Here a defendant files an answer under oath, setting forth a state of facts which she considers ought to avoid the note. She also sets up as a set-off the indebtedness of the plaintiff to her, for wood sold by plaintiff off her land, and for rent of a house on her land, and also for damages done to her by the plaintiff in cutting down timber on the defendant’s land. She estimates the indebtedness and the damages at $1070, and asks judgment for the excess of this set-off above the note. This set- off is not noticed ; no replication nor any defence to it set up by the plaintiff; judgment in due course of law is rendered against the plaintiff on this set off. Eight days after this judgment, a motion is made to set it aside, without showing any cause except a want of care and diligence on the part of the plaintiff’s counsel. No affidavit showing a meritorious de-fence against the defendant’s set-off; none alleging want of merits in the set-off, or denying the justice and correctness of the claims set forth in the set-off. Indeed, there are no grounds furnished, either by the reasons or by the affidavit, which ought to have been considered in such favorable light by the court.

Here, a defendant has pleaded matters in her answer as a set-off, which in part might have been rejected, as forming no basis of such a plea; but a part of the matters pleaded will properly form the grounds of a set-off. Upon this plea thus containing such matters, a judgment is taken by confession. Then, unless such judgment be properly and for good cause set aside, it was the right of the defendant to have an inquiry by jury to ascertain the amount of the demand set up in such set- off.

In looking through the whole record, we find the case to have been tried in such a manner as to leave it uncertain whether justice has been had or not. Had the court below, after setting aside the judgment on the set-off, allowed the defendant to amend the set-off by filing such a plea as the law would permit, and had afterwards tried the merits of such plea, there could have been no grounds of complaint, although the judgment had been set aside without sufficient cause. In such a case this court would not reverse, although we might be of the opinion that the judgment was improperly set aside. But here there is no pretence to suppose that the matters set up in the plea of set-off have been investigated between these parties in the court below. The plea of set-off was entirely stricken out, although the party once had judgment on the plea in her favor, and that judgment set aside without sufficient reason.

It may be said that the record does not show that the defendant wished to amend her plea; does not show that any exceptions were taken to the action of the court in striking out the plea of set-off. This is so, for a more imperfectly saved record of a trial we have seldom examined. Yet the ruling of the court in setting aside the judgment by default is saved, and we think the court erred in that.

In regard to the finding of the court on the issue of fraud in obtaining the note, we can not see how the defendant can com-. plain in this court o£ such action in the lower court, not hav-having saved by exceptions any objection in that respect.

We shall therefore reverse the judgment of the lower court and remand the cause, with directions to order a writ of inquiry of damages on the judgment by default on the defendant’s set-off, with instructions to the jury of inquiry to ascertain the amount of the defendant’s claim against the plaintiff as set forth in her plea. The judgment by default having admitted her right to the demand, the amount remains to be ascertained by a jury from the evidence to be offered. Judge Scott concurring in reversing the judgment;

Judge Leonard dissents.


text:
    Wilson, Appellant, v. School Township No. 6, Respondent.
    1. An appeal will not lie to a circuit court from an order of a county court vacating and setting aside a sale of a 16th section made by the sheriff under a previous order of the county court.

      Appeal from, Jefferson Circuit Court.

    The county court of Jefferson county made an order that a sale of the school lands (portions of the 16th section,) of school township No. 6, made by the sheriff under a previous order of the county court for that purpose, be set aside and held for naught, and that the sheriff again advertise and sell the said lands, &c. From this order, Wilson, the purchaser, appealed to the Circuit Court; which court refused to set aside the order of the county court. The case is brought here by appeal.

      J. Jl. Beal, for appellant.
    I. The county court had no right or jurisdiction to set aside the sale made by the sheriff. Upon the sheriff’s reporting a sale of the lands, Wilson could not be divested of title by the county court arbitrarily ordering a new sale. The county court has no jurisdiction over the matter. If an irregularity existed (which is not the case), the county court could not disturb the sale for such irregularity'. (17 Mo. 71, 84, 85.) Courts of limited jurisdiction can not exceed their statutory powers. (7 U. S. Dig. 226 ; 18 ib. 437; 12 Mo. 8.)

      P. Pipkin, for respondent.
    By the law regulating the sale of the 16th sections, the power to dispose of them is exclusively within the jurisdiction of the county courts of the counties in which they lie. The sales are under the control of the court, and are not binding upon the parties until confirmed, approved and certified up by the county court. (Perkins & C. v. Reed & R. 1 Swan, 80.) This case is precisely in point. The proper remedy for appellants to compel the county court to certify the sale to the register is by mandamus and not by appeal.
   LEONARD, Judge,

delivered the opinion of the court.

A county court, acting under the law authorizing the sale of the 16th sections, vacated a sale made by the sheriff under an order of the court for that purpose. The purchaser appealed to the Circuit Court, and his appeal was dismissed, and thereupon he appealed to this court. Although the circuit courts have appellate jurisdietioriover the judgments and orders of the county courts in all cases not expressly prohibited by law, (R. C. 1845, p. 380, sec. 6), yet this jurisdiction can not be exercised unless the means be provided by law for that purpose. Writs of error and certiorari are common law writs, and may be used where they are appropriate (R. C. 1845, p. 334, sec. 5) ; but an appeal is a statutory remedy that exists only in the cases in which it is expressly given. No appeal is allowed from this order, either in the act authorizing the proceeding, or in any general law, that we are aware of, embracing all cases of this character.

If the court had no authority to set aside the sale, it will be their duty, under the law, upon the payment of the purchase money, to make and forward to tbe register a statement of the fact of the purchase and payment, which will entitle the party to a patent; and if this statement be withheld the party has a remedy by mandamus, but he can not try the question in this manner. The judgment is affirmed.


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    Allen, Appellant, v. Trustees of School District, &c., Respondent.
    X. The trustees of a school district organized under the act of March 27th, 1845, can not he sued as a corporation for a debt incurred by them for the building of a school-house for the district; nor would the property, held by them as such trustees for the use of the school district, be liable to execution.

      Appeal from Pilee Circuit Court.

    This was a suit against “ the trustees of school district No. 1, T. 53, R. 3 W., in Pike county.” The petition is as follows : “ Plaintiff states that the defendants, on the 15th of March, 1848, entered into a contract of that date with William Watson, to build a frame school-house on lot 273, in the town of Bowling Green, in said county, for said school district; that in that contract the said trustees promised said Watson that if he would build and erect a frame school-house on said lot, and furnish all the materials necessary for the same, of the description and specifications therein mentioned, and complete the same by the 1st of August, 1848, that they as trustees would pay him what money they then had on hand, which was about fifty dollars, and that they would also pay him the sum of two hundred dollars more, for the payment of which the trustees bound themselves and their successors in office to annually apply the annual tax to be levied in said school district, until the whole should be paid; that so soon as the schoolhouse was completed and fit for use, the trustees were to have the use of the same, and they were from that time to pay interest on any balance of the sum of two hundred and forty dollars as should be then unpaid ; and further, the trustees agreed that said Watson was to have a lien on said house for five years for the payment of said debt and interest. The plaintiff further states that the said Watson received of the trustees the fifty dollars on hand, and proceeded to get the materials and to build said school-house, and that he did in all things comply with Ms part of said contract to the acceptance of the trustees, who received the house and have ever since used the same; that on the 16th March, 1849, a new board of trustees received the house and contract as complete ; that after that, on the 24th March, 1849, the said William Watson, for value received, assigned said contract to the plaintiff Hugh Allen, of which the trustees had due notice by said Allen and by said Watson ; that on the 7th August, 1849, the trustees paid said Allen the sum of seventy dollars ; that on the 24th March, 1851, the trustees paid him on said contract the sum of sixty-six dollars ; that these are all the payments that have been made said Watson before the above assignment, and all that have been made said Allen since, and that the residue of said two hundred and forty dollars, with interest, is yet due and unpaid ; wherefore plaintiff says that the trustees have not complied with their contract; that the annual tax in said school district was not less than about sixty-five dollars, which, if it had been collected and applied annually to the contract, would, before this, have paid off the whole debt and interest; that the trustees have hitherto failed to apply the annual tax in said school district to the payment of this debt. Plaintiff therefore asks judgment for the balance of said debt and interest, and for an order to sell said school-house and lot, and if that shall not be sufficient to pay off the judgment and costs, then for an order on the trustees to raise the residue and to pay it over to the plaintiff. The plaintiff’ also asks for such further relief as shall seem just and proper in this behalf.”
    lío this petition there was a demurrer, which was sustained, Plaintiff appealed.

      Hunt and Broadhead, for appellant.
    The only point raised on the demurrer, or decided by the court below, was that the defendants were not liable or bound by the contract of their predecessors ; that one board of trustees have no power to bind their successors to pay for the building a school-house for the district. One board of trustees may bind their successors in a contract to build a school-house.
    By the school law there are to be three trustees elected annually. (Chap. 4, secs. T, 26.) The trustees act in their official name as a body corporate. (Secs. 19, 20.)- They have power and it is made their duty to call meetings of the inhabitants of the district; to make out a list of the taxes assessed ; to issue a warrant to collect the same ; to- purchase a site for a school-house, and to build a school-house thereon. (Sec. 32.) They have power to hold property and to sue in their official and corporate name (secs. 54, 71) ; and at the expiration of their official term they are required to settle with and deliver over to their successors in office all the property, money and bonds on hand, &c. (Secs. 55, 60.) These provisions show that the trustees are a quasi corporation, and as such, can, in their corporate name, hind their successors in any contract within their official duty ; and that their successors may be sued, as well as sue, o>n such contract. The following cases support the same view : Ang. on Corp. 17, 18, and eases cited ; 1 Kyd, 29, 30 ; 8 J. R. 422 j 1 Cowen, 258; 9 Dana, 519 ; 13 Mass. 192.
    There was no appearance for respondents.
   Scott, Judge,

delivered the opinion of the court.

We do not deem it necessary to enter into, any examination with a view to ascertain the extent of the powers of a quasi corporation, as, in our opinion, the powers conferred and the duties and liabilities imposed on the trustees of a school district are enumerated in the act approved March 27th, 1845. A careful examination of the provisions of that act has not resulted in a discovery of any authority to institute suits against them as a corporation. The power to take in their corporate name bonds and mortgages, and hold all such bonds and mortgages as a corporation, and account therefor to their successors, is a carefully delegated power, and does not by implication subject them to an action as a corporation. If those bodies were regarded as corporations, there would have been no necessity for the 54th section of the 4th article, which directs that “ all property now vested in the trustees of any school district, for the use of schools in the district, or which may be hereafter transferred to such trustees for that purpose-, shall be held by them as a corporation.” It is impossible to escape the conclusion that the careful enumeration of the instances in which the trustees were to be regarded as a corporation, excludes the idea that they were deemed to be such in any other instances. Nothing would have been easier, had it been so intended, than to have declared the trustees a corporation, with all its common law incidents ; but to have subjected the trustees, as such, to suit, would have been against the policy of the act. A power to sue carries with it a right to enforce a judgment obtained by execution. The trustees, as such, could have no property but what was necessary to carry on their schools. Are we to suppose that the legislature, after such care in providing for schoolhouses and the means of education, intended that they should at any moment be sacrificed at the suit of a creditor ? It may be asked, are the trustees to be exempt from liability on their contracts, and are creditors to have no remedy for their demands ? The 69th section of the 4th article of the act provides, that “ any person conceiving himself aggrieved by any decision made or by any act done by any school district meeting, or by the trustees of any district, or by the refusal of any such trustees to do any act, or to perform any duty required by law, may appeal to the school directors of the township, whose decision thereon, after a hearing of the parties, shall be final.” Under this provision, the plaintiff might have applied to the directors on a refusal to pay his demand, and had such steps taken as would bare compelled tbe laying of a tax for tbe satisfaction of it. Tbe policy of tbe act clearly indicates that taxation on the inhabitants of tbe school district, and not a sale of its school property, is tbe means of obtaining satisfaction from any school district for any legal demand against it.

Being satisfied that the law never contemplated that tbe trustees, as such, should be subject to suit, so as to render tbe property of the school district liable to. execution, we do not feel ourselves warranted in going further than affirming the judgment of the court below, without an inquiry into the difficulties in the way of obtaining satisfaction of his demand, which may have been interposed to the plaintiff by the change of the act of 1845. To prevent misconception, however, it may be stated that there is a difference between the act of 1845 and that of 1858 in relation to the power of taxation. By the act of 1845, sec. 13, art. 4, it is provided that the tax imposed by a district meeting shall not exceed in any one year fifty per cent, on the amount of taxes laid by law for state purposes. The act of 1853 contains no limit on the power of taxation, hence it has been thought, that under it the whole tax necessary to build a school-house must be laid at once, and the assessments not protracted through a number of years. This has been the practice in some instances. This case calls for no expression of our opinion on this question, and we give none.

In maintaining that the trustees are not liable to an action, so as to subject the school property to execution, we of course do not intend to convey the idea that they may not be personally liable to an action, when they bind themselves individually, or when, by their wrongful conduct, they cause injury to another.

In referring to the 69th section of the 4th article of the act of 1845, as containing a remedy for those who conceive themselves aggrieved by any decision made, or by any act done by those carrying out the provisions of the act, we do not wish to be understood as intimating that the section referred to is the only remedy that is open to the party aggrieved. We give no opinion on that point. (Easton v. Calender, 11 Wend. 91.) The other judges concurring, the judgment will be affirmed.