Sigerson v. Pomeroy et al.
Whether Pomeroy & Andrews did obey these directions, by giving the same to their consignees in New Orleans; or whether they departed from them or altered them, by adding conditions or requirements inconsistent therewith, was a fact to be left to the finding of the jury, and the first instruction which the court gave on the part of the defendant, embraced this subject. We do not feel ourselves at liberty to disturb this finding, however we might differ from the jury in reaching the conclusion they did in this case.
We find no fault with the first instruction given by the court for the plaintiffs below, and shall therefore pass it by.
We do not assent to the second instruction for the plaintiffs in this case. It has a tendency to withdraw from the jury the inquiry as to the connection between Pomeroy & Andrews and Andrews & Brother, whether there was a
partnership or not in the profits and losses arising from the shipping 626 and forwarding produce generally. It also took from them the inquiry, whether the plaintiffs in this action were the agents or not as they stood between Andrews & Brother and Sigerson, in this business; and whether the lard was lost by a violation of Sigerson's orders, caused by the plaintiffs or not. We think this instruction as it stands, might mislead the jury, and was, therefore, improper.(a)
The refusal of the court to give the 3rd instruction asked for by the defendant, as marked in the above statement, is in our opinion erroneous. This instruction contains a correct legal proposition, and was applicable to the facts in_proof and ought to have been given to the jury.
If Pomeroy & Andrews only advanced money got from the sale of bills drawn by them on Andrews & Brother on the shipment of Sigerson's property to Andrews & Brother, and Andrews & Brother received the shipments and thus were in receipt or possession of the fund drawn on, then Pomeroy & Andrews could have no claim on Sigerson without showing, that the bills, or some of them, have been dishonored, and that they paid, or became liable to pay the
In our opinion, then, without taking notice any further of the instructions, the judgment of the court below is erroneous. The motion for a new trial should have been sustained. The judgment is therefore reversed and cause remanded. Judge BIRCH concurring herein.
(a) Ball v. Sigerson, 24 Mo. R. 53.
The plea authorized by the 25th section of the act concerning Attachments, by which the
defendant puts in issue the truth of the facts alleged in the plaintiff's affidavit, is a plea
in abatement. If after filing such plea, the defendant files a plea to the merits of the action
it is a waiver of the plea in abatement. Hatry v. Shuman, 547.
1. An administrator cannot sue his co-administrator at law. Martin v. Martin, Adm'r, 36.
2. See EVIDENCE, 8.
3. See AWARDS, 2.
4. See NOTICE, 3.
5. See PRINCIPAL AND AGENT, 1.
6. An administrator appointed under the laws of another State, cannot Indorse a promis-
sory note made payable to the intestate by a citizen of this State, so as to give the indorsee
a right of action here in his own name. McCarty v. Hall, 480.
8. See CONTRACTS and Covenants, 9.
Where the declaration of a prisoner is given in evidence, the jury may reject that part which
is in his favor and believe that which is against him." Green v. The State, 382.
ADVERSE POSSESSION.
Twenty contiguous years' adverse possession of land, confers upon the possessor an absolute
title against all persons not excepted by the terms of our statute of limitations. Biddle
v. Mellon, 335.
2. The defendant filed a demurrer to complainant's bill, which was sustained by the court,
and leave given to amend. At the succeeding term of court, the complainant having
failed to amend, the court dismissed the bill absolutely-Held, that there being no bill of
exceptions showing the terms upon which the leave to amend was given to complainant,
the presumption is that the court properly dismissed the bill, but should have dismissed it
without prejudice. Timmons v. Chouteau et al., 223.
1. Arbitrators have power, under the statute, to award costs against either party, unless they
be expressly prohibited from so doing, by the terms of the submission. McClure v.
Shroyer, 104.
2. See AWARDS, 1, 2.
1. The owner of a judgment at law cannot assign to another person a part thereof, without
the consent of the debtor.
2. See BONDS AND NOTES, 10.
3. See EVIDENCE, 18.
4. See ADMINISTRATION, 6.
2. See CONTRACTS AND COVENANTS, 1, 4.
3. See STAKE-HOLDER, 1, 2.
1. This was a suit by attachment. The affidavit alleges the facts set forth in the third sub-
division of the first section of the act, that the defendant has absconded or absented
himself from his usual place of abode in this State, so that the ordinary process of law
cannot be served upon him." The writ was in fact served upon the defendant. The
defendant filed a plea, in the nature of a plea in abatement, putting in issue the facts set
forth in the affidavit. Under this plea, the only issue to be tried by a jury is the fact
whether the party so absconded or absented himself as to prevent the service of a writ;
the intention to abscond is not a question for their inquiry. Temple v. Cockran, 116.
2. See JUDGMENT, 5.
4. Under the statute of this State an attachment cannot issue in an action of tort-process of
attachment is confined to actions upon contracts.
McDonald et al. v. Forsyth et al., 549.
1. In order to authenticate, for the purpose of evidence, copies of proceedings had by a
former justice of the peace whose term of office has expired, there must be some proof to
show that the justice who certifies the copy, is successor to the one before whom the pro-
ceedings were had, and became possessed of his "docket and papers." Halsted v.
Brice, 171.
2. In order to authenticate a record of a sister State, under the act of Congress of May 26,
1790, it is indispensable that the judge should state in his certificate, that the attestation of
the clerk is in due form. Duvall v. Ellis, 203.
3. Where a court of a sister State is not so constituted as to bring it within the act of Congress
of 1790, providing for the mode of Authenticating Records, its proceedings may be authen-
ticated in the common law mode. Ibid.
4. See WILLS AND TESTAMENTS, 5.
1. Piaintiff and defendant on the 25th day of September, 1847, entered into an article to
submit certain matters of controversy between them to arbitrators. One of the terms of
the article was, that the award should be made and published within ten days from the
date of the article. The award was made, written out, signed and witnessed on the 4th
day of October following-Held, to be a sufficient publication of the award within the
time. McClure v. Shroyer, 104.
2. The arbitrators, before whom the plaintiff and defendant had submitted their matters of
dispute, allowed plaintiff a demand which the defendant owed him as administrator.
Upon the trial before the arbitrators, the defendant did not object to the nature of the
claim, but only to the amount of it-Held, not to be a sufficient cause to vacate the award.
Ibid.
A sheriff to whom a capias was issued, returned: "This execution is returned not satisfied, there
being no property of D. found in B. county whereon to levy and make the same, and the
said D. having taken the benefit of the bankrupt law." The writ was delivered to the sheriff
sixty days before D. made his application for the benefit of the bankrupt law of 1842.
Plaintiffs instituted suit upon the sheriff's bond for his failure to arrest D.-Held: 1. That
D. was protected from arrest from and after the time of filing his application to the bank-
rupt court. 2. That the sheriff had until the day of the return of the writ to execute it;
and it devolved upon the plaintiffs to prove special circumstances to show that the sherif
was guilty of negligence between the period of the issuance of the writ and the applica-
tion of D. to the bankrupt court. 3. That it was competent for the sheriff (to show his
inability to execute the writ) to prove that D. was not in his county from the date of the
writ to the time of filing his application to the bankrupt court. State, to use, &c. v. Rollins
et al., 179.
1. Where an indictment for a violation of the 4th section of the act to prevent illegal Banking,
describes the offense in the words of the act, a general conviction or acquittal, would
constitute a bar to a subsequent indictment for a similar offense, during the period covered
by the terms and intendment of the averments in the former indictment. The State v.
Presbury, 342.
2. Plaintiffs were entitled, under the will of their father, who died in the State of Louisiana,
to certain slaves after the death of their mother, who owned a life-estate in them. Their
mother owning a life-estate, instituted suit against defendant to recover possession of the
slaves and joined the names of the plaintiffs with her's in the suit. Judgment was ren-
dered for the defendant. Their mother being dead, the plaintiffs now sue in detinue to
recover the slaves-Held, that the judgment thus rendered against plaintiffs is no bar to
their right to recover; that such judgment only concluded those who had a right to sue.
Haile y. Hill et al., 612.
1. See NOTICE, 4.
2. See BONDS AND NOTES, 5.
3. If an agent makes a bill of exchange in his own name, or makes a contract in such shape
as to bind himself on the face of the instrument, and not by his signature to bind his prin-
cipal, he is individually bound, although his agency was known by the other party at the
time of making it. Smith v. Spalding, 529.
1. Where all the evidence given is not preserved by bill of exceptions, the propriety of giving
or refusing instructions by the Circuit Court cannot be reviewed in the Supreme Court.
Hensley et al. v. Peck et al., 587.
2. If no objection was made to any of the evidence given in the Circuit Court, and no excep
tions taken to any of the instructions given by that court for either party, the Supreme
Court will not notice either. Steinman v. Tolivar, 590.
1. Upon a proceeding under the act concerning Boats and Vessels, no process can issue
against a boat until a bond is filed. Steamboat Archer v. Goldstein, 24.
2. See COMMON-CARRIERS, 1, 2.
3. See MISSISSIPPI RIVER, 1.
4. See INTERPLEADER, 1.
5. Where the claim of a "part owner'' against a boat, comes within the provisions of the first
section of the act concerning Boats and Vessels, it is a lien upon the boat as in cases of
other persons. The only restriction upon the part owner is that he is required to give
notice in writing to all the other owners of his intention to commence his suit twenty days
before the commencement of the action. Langstaf et al v. Rock, 570.
The title of a bona fide purchaser of a slave from an administrator for a valuable consideration,
and without notice of any fraud on the part of the administrator, is good. Pipkin, Adm'r,
v. Casey, 347.
1. The defendants, as securities for A., signed a blank note, which was to be filled up by A.,
and to be made payable to the Bank of Missouri at Fayette, for the sum of $400 00. A.,
instead of making the note payable to the Bank, according to the understanding at the
time it was signed, filled it up by making plaintiff the payee, and delivered it to him for a
valuable consideration, he having full knowledge of the facts at the time he received it—
Held, that this knowledge of the plaintiff, of the understanding of the defendants at the
time they signed the blank, cannot affect his right to recover upon the note. Harris v.
Enyart, 108.
2. See SCHOOL LANDS, 1.
3. See FRAUD, 1.
4. See NOTICE, 4.
5. What facts will excuse notice of a demand upon the maker or acceptor of a negotiable note,
or amount to a waiver of such notice is a question of law for the determination of a court.
Wilson v. Huston, 146.
6. The holder of a negotiable note, severally indorsed in blank by two or more persons, has
no right to fill up one indorsement over the signatures, so as to make the assignment to
him the joint act of all those whose names are thus written upon it. Morrison v. Smith
et al., 234.
8. Plaintiff, who was a bona fide holder, for value, of a negotiable note, instituted suit against
defendant, who was the first indorser. The defense was that defendant indorsed the note
when blank, with the understanding that it was afterwards to be filled by the maker with
a certain amount, and that the maker filled the note with a much larger amount than that
agreed upon-Held, that such conduct on the part of the maker amounted only to a breach
of confidence, and is no defense to the action. Tumilty v. Bank of Mo., 276.
9. If a person whose name is not inserted in the body of an instrument of writing, signs and
seals it at the foot thereof, it is a sufficient execution to make it his bond in a court of
equity. Keeton et al. v. Spradling et al., 321.
10. A blank indorsement of a promissory note by the payee, though done solely for the pur-
pose of collection, is prima facie evidence of an assignment for value, and may be so
treated by any subsequent assignee. Odell et al. v. Presbury et al., 330.
11. See ADMINISTRATION, 6.
12. A bond is binding upon all the obligors who sign, seal and deliver it, although the names
of part of the obligors be omitted in the body of the bond. The case of Adams et al. v.
Wilson, 10 Mo. R. 341, overruled. Johnson et al. v. Steamboat Lehigh, 539.
Plaintiff sued defendant on a covenant of seizen of indefeasible estate in fee simple; the only
breach assigned was that defendant was not seized of an indefeasible estate in fee simple;
defendant pleaded that at the time of making the deed he was seized of an indefeasible
estate in fee simple. Upon the trial neither party gave any testimony-Held, that the bur-
den of proof devolved upon the defendant, but that the plaintiff could only recover
nominal damage; that to entitle him to recover the purchase-money with interest he must
show that the defendant was not seized of an indefeasible estate. Bircher v. Watkins, 521.
CHANCERY.
2. Where a court of chancery obtains jurisdiction of a cause for any purpose, it may proceed
with the whole case and decide it upon its merits. Keeton et al. v. Spradling et al., 321.
3. Where an answer is responsive to the allegations in the bill, it must stand as proof of the
facts stated in it, until contradicted by two witnesses, or by one witness and strong cor-
roborating circumstances. Hewes v. Musick, 395.
1. Informalities in the application for a change of venue are waived by a party appearing
during the progress of the cause subsequent to its removal. The voluntary appearance
of the party resisting the change, gives the court to which the cause is removed jurisdic-
tion over his person. Powers v. Browder, Adm'r, &c., 154.
2. Upon an application for a change of venue in a criminal case, reasonable notice must be
given previously to the application; the reasonableness of the notice must be construed
with reference to the existing parties. Golden v. The State, 417.
3. The general law providing for a change of venue in criminal cases, does not apply to causes
pending against persons undergoing sentence of imprisonment in the penitentiary. Ibid.
4. Upon a change of venue, the clerk of the court to which the cause was removed omitted to
indorse upon the transcript, the time when it was filed in his office; the defendant
appeared and continued the cause; at the next term the court directed the clerk to indorse
upon the transcript the time when it was filed-Held, not sufficient cause for arresting the
judgment of the court. Day v. The State, 422.
1. The 17th section of the 7th article of the charter of St. Louis, approved February 15th, 1841,
was continued in force by the act of February 8th, 1843. City of St. Louie v. Allen, 400.
2. The act of 1841, enlarging the corporate limits of the city of St. Louis, is constitutional. Ibid.
COMMON-CARRIERS.
1. In an action against a common-carrier for a loss on freight occasioned by unnecessary
delay and the unseaworthiness of the vessel; upon proof of such delay or taceaworthi-
ness and a loss, the carrier can exempt himself from liability therefor only by sbowing
that such less would and must have happened in the absenes of sweà doizy and unsea-
worthiness. Susith et al. v. Whitman, to wee of, &c., 232
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