Volume 35 — Missouri Reports

I. A corporation authorized to be constituted under an act of the Legislature cannot accept any agreement payable to it, or for its benefit, until the prerequisites have been performed to give it a… Held: that as against the corporation the act of the persons whom the corporation held out to the world as its officers ought to bind the corporation. I. The statute of Illinois (Sess. Acts of Ill., p. 89, 1851) created a corporation per se.

Louis Circuit Court. The important question presented in this case is as to the effect of the annual settlements made by the executor in the progress of the administration, and which, according… Held: that a final account regularly ‘taken before the ordinary, discharged the executor forever, and no further suit could be brought in any court for an account. But to have this effect, it was indispensable that the parties in interest should be cited to be present at the account.

Louis Land Court. The sheriff had power to make the sale under the deed of Mordecai and Clamorgan to Thompson. (Foster v. G-oree, 4 Ala. 440; Wooldrige v. Planters’ Bank, 1 Sneed, 302; Goss v. Singleton, 2 Head, 67 ; Gibbs v. Marsh, 2 Metcalf, 243, 244, 253.) Trustee may sell for non-payment of intcr-est, although debt be not due. (Richard y. Holme, 18 How. ü.

<p> Error to St. Louis Land Court. </p>

Louis Land Court. The plaintiff sued in ejectment to recover possession of a tract of one by forty arpens, alleging in bis petition that it was the same tract which was proved before Recorder Hunt in… Held: that it was competent for a defendant in ejectment to prove that a person claiming as patentee although of the same name, was not the patentee intended by the grant; that is, that something more was necessary than mere identity of name.

Suit to recover nine-twentieths of a lot in Carondelet. The petition stated that Antoine Mallette and Angelique Moreau, under a marriage contract made and executed and recorded 30th September, 1805, in the State of Missouri and county of St. Louis; that by this contract there was established between them a community; that during its existence the town of Carondelet conveyed to said Angelique Mallette, the south-west quarter of block 63, in the town, and of which block the…

<p> Appeal from, St Louis Land Court.. </p>

Louis Land Court. The court below should have set aside the sale and sheriff’s deed, I. Because the defendants had no notice of the sale and execution. By the statute of Executions, R. C. 1855, p. 742, § 25, the defendants may elect what property shall be levied upon to satisfy the execution ; for this purpose they should be notified that the execution is in the sheriff’s hands.

<p>Practice — Instructions—Issues.—An instruction, that all allegations in the petition not specifically denied in the answer, are to be taken as true, is erroneous ; the issues should he specifically stated.</p> <p>Railroad — Carriers—Evidence.—Where goods are claimed to have been delivered to an agent, at a distance from the line of a railroad, to he carried to the road and thence transported on its line, the authority of the person thus purporting to act as agent, to bind the corporation, must be shown.</p>

Louis Laiv Commissioners Court. There are but two points presented for the decision of the court. I. Had the justice jurisdiction of the action, or is there anything alleged in the complaint to render the defendant liable in this action ? II. Could the plaintiff, in the absence of proof of trespass or encroachment upon his premises by defendant, recover, or should not the instruction asked by defendant have been given ?

Louis Law Commissioner’s Court. Action on mechanics’ lien, tried by the court sitting as a jury. Petition alleged that plaintiffs were partners ; that the defendant Bartlett was the contractor of the other defendants, Win.

Louis Land Court. I. This is nqt a suit between the holder and the maker of the note ; therefore the decisions of Atwood v. Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462, and of Bond v. Worley, 26 Mo. 255, do not apply. But in Gamier v. Papin, 30 Mo. 247, the court intimates that injunction would be a remedy to enforce such agreements, as are declared in these cases to be invalid as defences at law. II.

Louis Common Pleas Cowrt. I. The facts negative the material allegation in the petition, viz.: that Osborne, Camp & Co., endorsed and delivered the note sued on, to the plaintiffs for a valuable consideration, who are now the lawful holders and owners of said note. This allegation is denied in the answer. The plaintiffs simply failed to make out their case on the proof.

<p>Crimes — Sunday—Majority of Voters — Election.—Where an act of the General Assembly gave permission to the municipal corporations in the county of St. Louis to allow the sale of refreshments (distilled liquors excepted) upon any day in the week, when authorized by a majority of the legal voters of the respective cities; a vote of five thousand cast for such permission out of a vote of thirteen thousand cast for city officers at the election on the same day, is not the vote of the majority, two thousand votes only being cast against such permission.</p>

Louis Criminal Court. The act of the defendant was no forgery for which he could be indicted, tried or convicted. I. The mere altering of an instrument or writing being the act of another, with intent to injure or defraud, and by which a pecuniary demand and obligation purports to be diminished, does not of itself necessarily constitute the crime of forgery. II.

Louis Law Commissioner's Court. Plaintiffs below brought suit against the appellants, defendants below, and in their petition alleged, that at the time of the accruing of their account, set forth or referred to in their petition, they were co-partners, doing business under the name and firm of White & McLaughlin ; that the defendant, James TL Tooke, owed them one hundred and twenty-one dollars and thirty .cents, for materials furnished and plastering a two-story brick…

Louis Court of Common Pleas. The facts are fully stated in the opinion of the court. Instructions asked by appellant: 1.

Louis Land Court. The plaintiffs brought their suit against the defendants, stating'that they were the grantees of one Warson, and wife, for certain lots and blocks in Carondelet; that Warson derived his title from one Taylor, the father of the defendant Jane Dickey, wife of defendant Dickey, and the only heir of said Taylor; that Taylor, in making the conveyance to .Mrs. Warson had misdescribed the lots, making the description confused, ambiguous and erroneous; that he…

<p> Appeal from, St. Louis Land Court. </p>

Louis Court of Common Pleas. The respondent, an incorporated banking institution, issued and circulated as money notes of $5, $10, $20 and $50 each, payable on demand to bearer; and in 1859, one Henry Collier, in the course of trade through the branch of said bank at Weston and otherwise, became the owner and bearer of $8,685 of said notes, which, without fault on his part, were destroyed by fire.

Louis Court of Common Pleas. The matter most worthy of attention is, whether or not the paper called “ bill of particulars of work done” could be read in evidence, because on that paper the case rested before the jury. We contend that paper could not be read in evidence for any purpose. I. It purports to be, and is in fact, a copy of a private paper by a deceased resident engineer (Gordon) of the railroad company.

I. The judgment in favor of D. A. January et als. v. Abat, Williams, Lackland et al. was rendered by confession of an attorney in fact, under § 24, p. 1282, of the R. C. 1855. The plaintiffs in that case failed to comply with the statute, by making an affidavit that the debt was bona fide for a fair and valuable consideration, and owing after allowing all just credits and set-offs as required by that section.

Louis Land Court. The instructions Nos. 1 and 2, asked by defendants and refused, ought to have been given, because the lien law of 1857, applicable to St. Louis county, sec. 8, provides that the claimant shall file a just and true account, after all just credits have been given to which the debtor is entitled, and shall do this under oath.

Louis Land Court. This is a suit by plaintiff on mechanic’s lien against Charles Schuler as contractor, and Louis Peters as owner of the house upon which the lien is claimed, under the act of February 14, 1857, applicable to St. Louis county only. The plaintiff was a dealer in hardware, and sold articles to Schu-ler, which Schuler used in building the house upon which the lien is claimed.

<p>Mandamus. — The right to an office cannot be determined upon an application for a mandamus to the Auditor of Public Accounts to issue a warrant to the relator for the salary, while another person holds the commission. (State ex rel. Jaelcson, Auditor, &c., 34 Mo. 075.)</p>

Louis Circuit Court. I. It is submitted that this case is determined by the decisions in Voorhis v. Langsdorf, 31 Mo. 451; Youllairev. Tasker, 31 Mo. 445; and Decker v. D’Oench, 31 Mo. 453, decided since the appeal was taken in this case. The deed transferred only merchandise and stock, and its fraudulent character was proven by the plaintiff’s witness, in his relation of the res gestes, when called to prove its execution. It was, then, properly excluded.

Louis Circuit Court. I. False''swearing in respect to said loss or damage, by the terms of the policy, discharged defendant. False swearing in the premises could occur in two ways: 1. By plaintiff making the affidavit knowing its contents to be false. 2. By plaintiff swearing to material statements as being facts, without knowing whether they were facts or not. Under the first head, we do not complain of the action of the court below ; the proper instruction was given.

This action is not affected by the repealing act of' the Legislature, relied on by defendant. Held: and is undoubted law, that a penalty to a prosecutor is not a vested right, and that equitable constructions are never extended to penal statutes, or mere arbitrary regulations of public policy.

The plaintiff in error sued the defendant in error before a justice of the peace, on a statement or complaint filed, in which he alleged that she owed him $76.50, which, in May, 1862, she agreed to pay to him, if he demanded it; it being what would have been his distributive share of his father’s estate, which she consumed by bringing in a pretended claim for the support of infant children, and which the county court, at her final settlement, accepted on the express…

<p>Appeal — Transcript.—Transcript of record not showing what was the cause of action, judgment affirmed.</p>

The petition is defective ; and the judgment should therefore have been arrested. It alleges that “plaintiffs were called on as physicians, by the agent of said company, to attend to the said employees so injured; that at the instance and request of the agent of defendant, plaintiffs rendered their services as physicians to said persons,” &c. ' This averment shows no cause of action against defendant; if true, no liability arises from it.

JEhror to Cooper Circuit Court. I. The second instruction asked by the plaintiff below, and given, ought to have been refused; because, 1.

This was a scire facias upon an alleged recognizance. The defendants filed two pleas : 1. That there was no such record (mil tiel record). 2. That the supposed recognizance was taken upon the voluntary appearance of the principal and sureties before the justice of the peace, and without any adjudication made by the justice of the peace to authorize the taking of the same, and therefore that said supposed recognizance was void.

<p> Error to Cole Circuit Court. </p>

This was a suit commenced by John P. Routsong and others against Adam Wolf, in the Cole Circuit Court, on a contract entered into by plaintiffs and defendant for the conveyance, in fee simple absolute, of certain real estate, situate in the county of Cole, by plaintiffs to defendant, on the payment by defendant to plaintiffs of thirty-three hundred and thirty dollars, Defendant filed his answer.

White sued Dorris and wife in ejectment for the recovery of the possession of certain real estate in the city of Jefferson, in the Cole Circuit Court. The answer denied White’s right to the possession of said real estate, and averred that the same was owned by the said Thankful Jane Dorris, and that she was in possession thereof. The cause was tried by the court.

<p> Appeal from Macon Circuit Court. </p>

<p>jRaílroad.-r-'W'elton v. Pacific Railroad, 34 Mo. 358, affirmed.</p>

<p>Judgment — Practice.—No final judgment in the case. (Young y. Stonehreaker, 33 Mo. 117, affirmed.)</p>

I. The answer of the plaintiffs in error was a good and sufficient bar to the right of defendant in error to recover. (R. C. 1855, p. 288, § 4 & 9.) It was not necessary that the bank charter should have been declared forfeited upon a direct proceeding for that purpose. (North Mo. R.R. Co. v. Winkler, 33 Mo. 354.) The repealing act of March 23, 1863, of that portion of the act of 1855, should not affect the plea in bar of plaintiffs in error.

On the 14th of July, 1862, John Jump filed with the clerk of the Circuit Court of Polk county, his petition, affidavit and bond, and obtained a writ of attachment against James Batton and William H. Batton, for the sum of $808. 35; and the sheriff of said county executed said writ by attaching certain lands of the Battons, on the same day said writ was issued, and an order of publication was obtained after the sheriff had certified that they were not to be found in the…

<p> Petition for Mandamus. </p>

<p>Practice — Continuance.—Reasonable diligence to procure the attendance of witnesses and in preparing for trial must be shown, to authorize the application for a continuance.</p> <p>Practice — New Trial — Newly Discovered Evidence. — Upon an application for a new trial upon the ground of newly discovered evidence, it must appear that the evidence was newly discovered.</p>

Charles Circuit Court. I. The deed of trust of May, 1857, ought not to have been admitted in evidence. Its execution was six months prior to the first transaction between the two Granthams, and it had no connection with any matter whatever involved in this controversy. Its presence was calculated to mislead the jury and make them couple it with matters to which it was essentially foreign, to the prejudice of the plaintiff’s rights. II.

Charles Circuit Coivrt. The respondent David Thomas, administrator of James Ball’s estate, holding an execution against one Taliaferro P. Grantham, caused the same to be levied on certain personal property, including a brown mare, the subject of this controversy.

Louis Common Pleas Court. The appellants refer the court to the following authorities as showing that the loss in this case was not a loss by the unavoidable dangers of the river, and as further showing that the court erred in refusing to give the instruction asked by the appellants : 4 Yerg. 48 ; 1 Sum. 218; 5 Yerg. 82 ; 6 Bing. 716; 7 Yerg. 842; 2 Watts, 114; 2 Sum. 571; 1 Nash, C. C. 17; 1 Mur.

I. The confirmation to the legal representatives of Hardy-Ware enured to the benefit of William Clark. Held: in Landis v. Perkins, 12 Mo. 239, that the sale on execution of an unconfirmed claim to lands passed the title to the purchaser at the sale as assignee of the settler. (12 Mo. 239 ; 22 Mo. 55 ; 22 Mo. 66; 27 Mo. 445; 24 Mo. 585.) II.

<p> Error to St. Louis Circuit Court. </p>

Louis Criminal Court. Tlie defendants say they were two soldiers, who had been in the service; Williams had been in the service about two years and two months as a recruiting officer; was a great favorite in his company ; while recruiting he was delayed two or three days, and in consequence was ordered under arrest by his superior officer; resenting the indignity, he resigned.

Charles Circuit Court. The only question in this case is, whether the judgment in the partition suit between Francis To'sti and the heirs of Gabriel Latrielle, deceased, is valid or not. No principle is better settled in law than that a void judgment may be questioned in a collateral proceeding.

The statute provides that no person shall be tried or punished for any felony, other than as specified in R. C. 1855, p. 1211, § 29, unless the indictment be found within three years from the commission of the offence. (R. C. 1855, p. 1211, § 26.) If the first indictment be quashed, the second should state the proceedings, with precision dnd certainty, had under the first, required in original proceedings.

Louis Court of Common Pleas. The appellant contends that the sheriff’s deed to him vested in him all the interest that Eugene Leitensdorfer had in the property conveyed, at the time the attachments were levied.

Louis Circuit Cowt. The promissory note in question was trust property. Held: “ the words road and canal fund” on the lace of the note is notice. As to notice of a trust on the face of a paper, see Byles on Bills, 121; 14 Pet. 318; 1 Barn. & Ad. 528; 5 Wend. 566; 2 Sme. & Marsh. 687; 20 Mo. 105; 8 Taun. 103 ; 1 Atkyns, 522; 4 Ohio, 446-458 ;' 3 Russell, 273 ; 2 Hare, 172, 175; Doug. 615; 8 Barn. & Cress. 622.

The demurrer was improperly overruled, I. Because it does not on the face of the petition appear that the lands alleged to be sold to plaintiff, were located in the 16th section in lands selected in lieu thereof; but, on the contrary, that they were located in section 11. II. Because the plaintiff’s remedy is not against the defendant, but against the County of Warren. III.

The terms of the agreement between the parties contemplate and provide for the contingency, that the note might not be paid at maturity; and it is expressly stipulated in the body of the instrument itself, that the principal is to bear interest at the rate of ten per cent, per annum, and if the interest be not paid annually, to become as principal, and bear the same rate of interest,- thus agreeingupon and-fixing the-damages in the event of a-failure to-pay promptly at the…

Louis Common Pleas Cowl. The petition alleges that the defendant is the owner of an undivided one-half part of certain real estate described therein; that John Carroll contracted with the City of St. Louis to macadamize Olive street from Grand avenue to the western limits of the city, in front of said property ; in pursuance of the provisions with said contract, said Carroll completed said work, as appears by account and certificate of the city engineer, produced and filed;…

<p> Error to Jefferson Circuit Court. </p>

<p>Practice — Instructions.—Judgment reversed, there being no evidence to warrant the instruction given.</p>

<p>Justices’ Courts — Appeals.—Where a cause appealed from a justice’s court is dismissed, it is error in the appellate court to adjudge the costs against the defendants.</p>

Louis Circuit Court. There could be no trial of such issues in this case; the failure of the plaintiff to appear was a failure to… Held: that, since the enactment of the code of 1849, it will reverse for errors committed on the trial and excepted to, although the attention of the court below was not called to the error by motion, &c. (Fine v. Rogers, 15 Mo. 315-; Wagner v. Jacoby, 26 id. 530 ; Prince v. Cole, -28 id. 486.) There was no exception taken by the plaintiff…

<p> Appeal from St. Louis Circuit Court. </p> <p>It has been insisted from the beginning by the defendants in error, that the case of Johnson v. Johnson’s administrator, 30 Mo. 72, determines this case in accordance with the judgments of the courts below. Col. Johnson had but one wife in the Indian country, a daughter of the Indian chief “Keokuk.” In this case, the defendants in error assume that A. W. Harvey was married to two Indian women at the same time, of the Blackfeet tribe, under the customs of that tribe, and had one daughter by each of them — the wards of the defendants in error.</p> <p>It may be conceded on the proof that he cohabited with two Indian women at the same time, of that tribe, some years after 1833, and had a daughter by each one of them. It does not appear when this cohabitation commenced after 1833, at what locality, or whether that tribe had a settled habitation. At page 85 in said case, it is conceded by the court that the instruction of the Land Court is sustained by writers on marriage. “ But cohabitation by consent for an indefinite period of time, for the procreation and bringing up of children, that in a state of nature would be a marriage.”</p> <p>-The principle is not resisted ; but if he had cohabited with two Indian women at the same time, as in this case, that would have been inconsistent with the law of nature, either in a moral or Christian sense. The conclusion of the court had no reference to polygamy. The case cited in Tennessee-(5 Humph. 13) had relation only to a man and wife “to live together as man and wife.”</p> <p>It is a settled principle in England, that no law is valid that is not founded on reason. “ Upon the law of nature and the law of Revelation,' depend all human laws.” The western Indian tribes are not regarded as nations, but are held amenable to the laws of the United States. Their indomitable aversion to civilization precludes the idea of law among them ; they have no power to make laws ; and if they have no laws they can have no valid customs. - Although treaties are made with them, it is upon the principal of political sympathy. The Blaekfeet tribe, especially, are a migratory people, without local habitation, receding with the buffalo as civilization approaches. We are not assured by any evidence that these asserted customs exist among themselves, but merely with traders; we are not assured by any evidence that there is such an excess of females among them as to justify the possibility of such customs among themselves. Can these customs be traced back to a period of time beyond the reach of memory ? One of the witnesses stated “ they were such at that time, 1831.”</p> <p>The question of permanency, as discussed by the court at page. 86, has no bearing in mis case. Page 88, the court says: “ It is well settled as a general proposition, that a marriage valid according to the law or custom where it is contracted, is valid everywhere.” This principle is well established; but the question is, was there a marriage at all ? of which we will say more further on. A marriage in England and valid there, is valid here ; but what is called a marriage in Turkey, where a plurality of wives is allowed, is not valid here, because inconsistent with nature and Christianity. How could we regulate the law of descents and dower in such a state of case ?</p> <p>As to polygamy, see Sto. ConfL. L. §§ 113-14; 1 Black. Comm. 436; 9 Bligli, 112; Bishop, Mar. & D. 201, 89. As to the law of Missouri, “ that the issue of all marriages deemed null in law shall be legitimate.” It is upon this question, doubtless,. that the defendants in error hope to maintain their proposition. The court says: “ Under our laws, upon an issue of legitimacy the issue is limited to the mere fact of actual marriage, and upon this investigation, confining ourselves to the rules of evidence established before this significant change in the law, the jury are bound to make every intendment in favor of the legitimacy of the children not necessarily excluded by the proof.” The meaning of this law and of an actual marriage are now necessary inquiries. If the whole clause of the statute is taken together, it may somewhat explain the meaning of the Legislature: “ Where á man having by a woman (not women) one or moi’e children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be .thereby legitimated, and the issue of' all marriages deemed null in law shall be nevertheless legitimate.”</p> <p>The cases referred to by the court, 1 Peni’ose & W. 452, and 1 Harris & McH. 152, had no reference to polygamy, or to what is termed Indian customs. The Legislature did not mean any such thing as polygamy; they could not, because that was expressly prohibited by statutory penalties repeatedly carried into effect in this State in cases of bigamy.' There may be acts of parties which in common parlance may be called marriages, so absurd in themselves as to “negative the right to that appellation.</p> <p>But can there be any such thing as a marriage null in law ? The word itself implies legality — either natural or civil law ; without the sanction of law, it can have no existence. It is one. of the earliest institutions on earth, and has been held, through all the mutations of society, unchanged in its true signification. There is no word in language so truly defined. “ For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.” ((genesis, ch. 2, v. 24; Matthew, ch. 9, v. 5 ; Mark, ch. 10, v./7.) “ To avoid fornication, let every man have his own wife, and every wife her own husband.” (1 Cor. 7: 2.) “ Marriage was instituted by God himself to prevent the promiscuous intercourse of the sexes, for promoting domestic felicity.” (Web. Die.) “ In law, marriage is the conjugal union of one man with one woman.” (New Am. Cyc.)</p> <p>(See Bishop on Mar. & D. §§ 29 & 45.) It has its relative incidents, morally and civilly. In municipal law, legitimacy of children, transmission of property, inheritance and dower. These are as essential to the perfection of marriage, as the arteries of the heart to spiritual life. If Harvey was really married to the five women the witnesses speak of, or even two, how can the inheritance and dower be disposed of? The asserted marriage to the last two women was simultaneous — no priority of time.</p> <p>The respondents rely fully upon the case of Johnson v. Johnson’s Adm’r, 80 Mo. 72. In the case at bar, the marriage is much more fully proved than in the case cited, and the parties continued to live together in that relation till the death of Harvey. The only distinction between the case at bar and the case cited is, that in this case the deceased had two wives and a child by each, and in Johnson’s case there was but one wife.</p> <p>But it is a distinction without a difference' in principle. The point decided by the case of Johnson is, that a marriage valid by the custom of the Indian tribe where it was made, and where the parties continued to live together, will be recognized as valid in this State ; and especially so far as the children and their rights are concerned under the statutes of this State, it is only necessary to show a marriage in fact, whether legal or not, and that continued cohabitation as man and wife is sufficient to establish the fact of marriage. In this case we fully prove the fact and the law or custom of the tribe, and that polygamy is as lawful among that tribe of Indians as monogamy; and, in fact, the authority of School-craft, as quoted by the court in the case of Johnson, shows that polygamy is the common practice of the Indian tribes, and that the children are all recognized as of the family. The court say, in the case of Johnson, “ that, under our law, upon an issue of legitimacy the inquiry is limited to the mere fact of actual marriage, and that upon this investigation the jury are bound to make every intendment in favor of the legitimacy of the children, not necessarily excluded by the proof.”</p> <p>In vol. 14, American Jurist, p. 275, is an article upon the case of a Turk who had three wives, and to whom he was lawfully married according to the laws of his own country, and three sons, one by each wife, born in his own country. He then came to Philadelphia with his three wives and three sons and died, leaving real property in Pennsylvania to a large amount. The question was, would the real property go to the children equally as his legitimate heirs ? and the writer decides without hesitation that the children are.his legitimate heirs, and would take the property, share and share alike, as such..</p> <p>We think there is no difference in principle between the case at bar and that of Johnson, and that the judgment of the court below must be affirmed, unless the well settled law upon this subject is overturned.</p>

The inquiry being between original parties to the note, parol evidence was admissible to explain the manner in which the names of the appellants were endorsed upon the note. If they endorsed their names on a note under an agreement with the plaintiff, that agreement fixed their liability and they were not liable beyond it. (Lewis v. Harvey, 18 Mo. 74; Schneider v. Schiffman, 20 Mo. 571; Davis v. Francisco, 11 Mo. 272.)

Charles Circuit Court. I. This is not an action upon a writing for the payment of money or property, but an action upon a conditional or implied liability, and is therefore barred by the statute of limitations of five years. (R. 0. 1855, p. 1147,1148.) The only question in this case is, whether the limitation of ten years, or that of five years, applies to this action.

The suit must be brought and prosecuted in the name of the real party in interest. (R. C. 1855, p. 1217, § 1; Williams & Teatman, v. Whitlock, 14 Mo. 552; McLaughlin v. McLaughlin, 16 id. 242 ■, Smith v. Kennett, 18 id. 154 ; 18 id. 564; 19 id. 42 ; 19 id. 127 ; 20 id. 417 ; 81 id. 28.) The suit should have been brought in the name of Blackford, if he was the assignee, and not in the name of Hutchings to his use.

This was an action by Newton Matthews against Allen Cook and Chapel Foster, to set aside a deed made by said Matthews to Allen Cook, for 160.75 acres of land situate in Jefferson county, on the ground that he was intoxicated when it was made; that the consideration was, that Cook was to support him for life, and that he had failed to comply with the terms of conveyance ; also, for $300 in money, and the value of certain personal property delivered by him to Cook; and, also,…

The court manifestly erred in admitting the declaration of Nagel, the assignee of the note sued on, to impeach the title of Bobb the plaintiff, who was his assignee and sued as assignee. The declarations of Nagel, given in evidence by the defendant, were made in relation to facts which had occurred before the assignment was made and should have been excluded. (R. C. 1855, Witnesses, ^ 6, p. 1577-78-, Parish v. Frampton, 82 Mo. 396; Caldwell v. Garner, 31 Mo. 131.)

<p> Error to Jefferson Circuit Court. </p>

Louis Land Court. Ejectment brought by the plaintiff in error to recover possession of land in the vicinity of the city of St. Louis. James T. O’Carrol 1, who had a wife and three children, was settled upon a portion of the domain in the district of New Madrid, prior to the 20th of December, 1803, by permission of the proper Spanish officer, inhabiting and cultivating the land.

The petition in this case shows no cause of action, and the' motion in arrest of judgment should have been sustained.

Respondent instituted this suit to recover a sum of money, alleging in his petition that he was indebted to appellant in two sums of money, secured by deed of trust upon certain real estate, and upon which property also a mechanic’s lien existed, the whole amount of indebtedness being about $2,000.

Louis Common Pleas Cou/rt. I. In order to make any lapse of time a bar to an action, the person against whom it is to operate must be sui ju/ris able to enforce his rights. Here the real parties in interest are infants of tender years, and for whom no curator was appointed until 1855. Until that time no suit could have been brought by them against these defendants. II.

Charles Circuit Court. I. The parties are tenants in common in the fee of that part of the land lying outside of the St. Charles commons, and were tenants in common in equity of that portion with the commons. At the time of the sale to McKnight & Brady, by Duquette’s administrator, there was nothing but a claim to a tract of land, unconfirmed.

<p> Appeal from St. Franpois Circuit Court. </p> <p>On the 28th October, 1859, the plaintiff commenced suit against the defendant in the Circuit Court of St. Fran-§ois county. In his petition, he alleges that the defendant on' or about the 15th .day of May, 1859, assuming to have and exercise a certain office under the name and style of marshal of the town of Farmington, in said county, State of Missouri, and ex-officio collector of taxes in said town, did unlawfully seize, take and detain a negro boy by the name of Nelson, belonging to the plaintiff; and afterwards, on the 22d day of June, A. D. 1859, unlawfully proceeded to sell, and did sell said boy, with all plaintiff’s right, title and interest; that such sale was against his express prohibition, and that by such unlawful seizure and selling of said slave plaintiff suffered damage in the sum of twelve hundred dollars, for which he asks judgment.</p> <p>The defendant answered, setting up as his defence to plaintiff’s cause of action, that, at the times of levy and sale of said slave, he was in fact marshal and ex-officio collector of the taxes due the corporation of the town of Farmington, duly commissioned and qualified as such; that said town of Far-mington was duly incorporated under the laws of the State, under the name and style of the inhabitants of the town of Farmington. That there was on the tax list for the years 1858 and 1859, the sum of $16.68 due and owing by the said plaintiff to said corporation ; that said lists were placed in his hands for collection; that he demanded of plaintiff payment of said taxes on the 14th April, 1859; that plaintiff refused to pay the same, and that he .afterwards on the 15th day of May, A. D. 1859, by authority of and in pursuance of the ordinances of said corporation, did levy on and seize the boy mentioned, for the purpose of coercing the payment of said taxes; that the sale was made by authority of and in pursuance to said ordinances; that the slave sold for his value, and out of the proceeds of sale defendant deducted the taxes aforesaid, to wit, $16.68, and applied the same to the payment of the taxes due and owing by plaintiff to said corporation, and returned the remainder to the plaintiff. Defendant denies that the plaintiff was or is injured by any unlawful act of the defendant, but that if any damage was in fact done to the plaintiff, it was the result of his own improper conduct in and about the matter. Defendant avers that plaintiff had the slave bid in with his own money, and had him then in his own possession as his own ¡property.</p> <p>The plaintiff filed a motion to strike out the defendant’s answer for the following reasons: 1. It presents no facts which make a legal defence. 2. The answer claims that the defendant was marshal and ex-officio collector of the town of Farmington, but that the statute in relation to towns does not make a marshal, collector; nor authorize the same person to exereise the same offices. 3. The answer shows a selling of the slave as directed by the ordinances of the corporation, but fails to show a compliance with the provisions of the statutes in such cases. 4. The answer shows no judgment in favor of the corporation against the plaintiff as required by statute. 5. The answer is argumentative.</p> <p>The motion of the plaintiff was sustained, the answer stricken out, and the defendant excepted.</p> <p>The defendant on leave of the court filed an amended answer, denying that he unlawfully seized and sold the slave mentioned ; denying that the plaintiff was damaged by the seizure and sale of the slave; averring that he was marshal and ex-officio collector of said corporation, and denying that the plaintiff ought to recover any sum whatever as damages for the alleged seizure and sale of said slave.</p> <p>At the May term of said court, 1864, the cause came on to be tried, a jury selected, and the plaintiff in order to sustain his cause gave in substance the following evidence: That the defendant sold the boy in question at public sale, at the courthouse door in St. Frangois county, State of Missouri, four or five years ago; that plaintiff was present at the sale and forbade the sale ; .he told the by-standers to beware, they would get no title ; that the whole thing was illegal ; that at the time of the sale the boy was worth from $800 to $1,000. That about 15th June, A. D. 1859, Wm. Hunt in company with Achilles Smith came to the treasurer’s office of St. Fran§ois county, presented some county warrants drawn in favor of Achilles Smith, and drew $585 and left it with the treasurer till called for, and on the day of the sale of the slave, and immediately after the sale, he came and drew the money. Defendant on the cross-examination of plaintiff’s witnesses, proved that the effect of forbidding the sale of property at a public sale, was to cause it to sell for less than its actual value, and that after the sale the slave returned to the possession of the plaintiff, and remained with him till the bringing of this suit, and until he ran off in 1862; that he never was in possession of William Hunt, or any other person than the plaintiff.</p> <p>The defendant then proved that the slave sold for $600 ; that after deducting the taxes due from plaintiff to the corporation, and some small amount for costs, the remainder was returned to the plaintiff, which he accepted and receipted for; that at the sale the bidders were deterred from bidding by the threats of the plaintiff, that the purchaser would get no title, and that he would sue the purchaser, &c. The defendant then proved that the town of Farmington was duly incorporated under the statutes by the county court of St. Francois county; that he was on the 15th day of May, 1859, and on the 22d day of June, A. D. 1859, duly qualified and commissioned as marshal of the town of Farming-ton; that by the ordinances he, as marshal and ex-officio collector, was authorized to levy upon and sell personal property of any one residing in the corporation who might refuse to pay the corporation taxes; that the tax list was duly made out and placed in his hands previous to his making demand of the plaintiff for the taxes, and previous to the seizure of plaintiff’s property as above stated. That the taxes due by the plaintiff to the corporation for the years 1858 and 1859, amounted to $16.68; that the property levied upon was surrendered by plaintiff of bis own choice when called on by the collector for property; that a delivery bond was taken after the levy, and plaintiff retained possession of the slave; that the sale took place in all respects as provided for and required by the ordinances of the corporation ; that the ordinances were duly adopted by the board of trustees of the corporation.</p> <p>The court below committed error in striking out the answer of the defendant, and herein the appellant maintains the following propositions:</p> <p>I. The corporation of the town of Farmington had power to “ pass by-laws and ordinances, to levy and collect taxes.” (2 R. 0. 1525, § 7.) The power to “ levy and collect, necessarily implies the power to provide the mode and manner of collecting.” Whenever a power is granted, all necessary means to carry the power into force are implied. (1 Kent’s Comm. 464; 2 Hilton’s N. S., C. P., 203.)</p> <p>II. The provision in Sec. 14, act entitled Towns, that the town collector may bring suit for the taxes due from any one refusing to pay, is suggestive of a remedy and cumulative, and not imperative. By the same section, power is given to sell the real estate of non-residents, whose taxes are not paid, by the ordinances of the corporation, without suit and judgment first obtained. It would, then, be inconsistent to hold that the corporation could not exercise the less important power of selling personal property by provisions of ordinance. The construction of this section by the respondent is not only inconsistent but exceedingly inconvenient. (Sedg. Constr. of Stat., 238.)</p> <p>III. The words “ may” or “ shall” are only imperative when the public or individuals are interested in the act being done, and have a claim de jure that the power be exercised. (5 Johns. Oh. 101; 5 How. 188; 6 id. 223; 10 id. 238.) Plaintiff had no right to require suit to be brought; the ordinances provided for, and a court of appeals was actually held in all respects as in cases of State and county taxes. (Sedg. Constr. of Stat., 438 et seq.; id. 238.)</p> <p>IV. Tlie answer alleges that the slave was bid off for the plaintiff, and paid for with his own money. This was a good defence as to all things except nominal damages, and it should not have been stricken out. (9 Wend. 36 ; 16 Wend. 609 ; 3 Dana, 491.)</p> <p>V. The answer alleges that if the plaintiff was damaged, it was by his own improper and imprudent interference at the sale, and should not recover damages occasioned by himself. This constitutes a defence to the plaintiff’s action. (2 Greenl. Ev. § 266; 8 Am. Jurist 288-313; 2 Greenl. Ev., §§ 268, 272.) A party is entitled to no more damages than the facts and circumstances show him entitled to.</p> <p>VI. Application of the proceeds of the sale of the slave to the payment of the taxes due and owing by plaintiff to the corporation, and a return of the balance to the plaintiff, was a good defence as mitigation of damages. (2 Greenl. Ev., § 276 ; 14 Pick. 356, 361; 9 Pick. 551; 6 Mass. 20 ; 5 Mass. 104; 3 Zabris. 342; 2 Greenl. Ev., § 625.)</p> <p>VII. Damage is the loss or diminution of what is a man’s own, occasioned by the fault of another. (1 Ruthf. Institutes, B. 1, Oh. 17, § 1, p. 200.) Damage must be the natural consequence of the act complained of. (1 Dana, 378 ; 2 Greenl. Ev., §§ 256, 261.) Damage occasioned by the interference of the plaintiff is damnum, absque injuria. (2 B. Monroe, 212 ; 1 Phil. Ev. 140, 2 ed.; 2 Starkie, 143 ; 3 Star-kie’s Ev. 1310 ; 2 Phil. Ev. 155.)</p>

Frangois Circuit Court. I. The court ought, if the first proceedings in partition in 1852 were really void, to have recognized the “ other defendants” as still having rights in the tract. II. The proceedings in that case were not void ; they were at most voidable. III. There is no pretence that the decree of 1852 was not in consonance with the rights of all parties.

I. It is a general principle of law, that where an extension of time is given by the payee in a note to the principal debtor, without the consent of the surety therein, that said extension will release the surety; but where such consent is given, the surety is still held bound. (Nichols’ Adm’r v. Douglass et ah, 8 Mo. 49 ; 1 Pars. Notes, 288; 8 Ark. 141.) II.

Louis Law Commissioner’s Court. I. Admitting that the scope and intent of the statute concerning “Damages” (R. C: 1855, p. 649, § 5) are broad enough to change the general rule of law, and include cities with their streets and squares, as well as country districts with their “ enclosed fields” -and “public roads,” it is contended that this case comes within the exception of “ any public highway” crossing, both in respect of the legal acceptation of the words, and in…

The State in this instance did not make out even aprima facie case ; and bad she done so, it would have been wholly insufficient. The establishment of inferences, however strong, or probabilities however great, will not warrant a conviction. The “doctrine of chance” does not apply here. (Ogletin v. The State, 28 Ala. 69-8; 3 Greenl. Ev. § 29; Amer. Lead. Cases, 659; Lawson v. Morrison, 7 Ala. 69.)

The petition is certainly bad, even under our remarkable loose system of practice, and the court should have so holden it. The point raised by the demurrer was solely a question of pleading. The alleged contemporaneous parol agreement, even if admissible at all, could only have been properly urged on the trial, and has nothing to do with the the sufficiency of the petition; an issue of law, is not of fact.

26, in township No. 39, of range No. 15, and one Scott Strong being the owner of the north-east quarter of the south-east quarter of the above described section, township and range, they, the said Salsman and Strong, erected a mill and mill dam on the above described lands; the mill buildings being erected on the land of Salsman and the mill dam on both of the above described tracts, but mainly on the land of Strong.

<p>Practice — Default.—It is erroneous to enter a judgment by default while there is an answer on file remaining undisposed of.</p>

I. The court erred in excluding the deposition of Eunk from the jury. It had some tendency to sustain the allegations in the answer, and to disprove the averments of the petition. He states positively that he was present when the contract was made, and was called on to witness it. II.

I. The petition as to the acceptor is unquestionably good. He can take no advantage of the delay in presenting the bill. The holder is at liberty to allow him whatever indulgence or delay he may please, short of the period which would under the -statute of limitations operate as a bar to his claim. (Sto. Bills, § 325 and note 1.) Therefore, even if the petition is insufficient as to the drawer, the court erred in sustaining the demurrer and dismissing the petition.

<p>Pleading — Note.—A petition upon a negotiable note, alleging that A. & B. made their note to A. and that the note was delivered to the plaintiff for a valuable consideration, whereby plaintiff became the owner of the note, does not show a right of action in the plaintiff.</p>

The judgment was irregular, and could be for that irregularity set aside on motion at any time within three years, (R. C. 1855, p. 1290, § 26,) and the time limited had not expired. A judgment is irregular whenever given for a greater amount than that shown by the petition and accompanying papers to be due.

It was admissible to allege and show what the understanding of the parties was as to their liability at the time of making the instrument; and moreover, Corwin’s name being written- on the note at the time of its making, made him an original promissor.

I. The instructions asked by plaintiff ought to have been given. (2 Black. Com. 142; Sand. Plead. 850; 10 Mo. 634; 3 Snead, 30 ; 5 Cow. 106.) The instructions given for defendant were erroneous. The above citation of authorities clearly shows that defendant’s instructions were improper and illegal.

The following instructions were given by the court of its own motion: 1.

The failure or neglect on the part of Richardson to pay one hundred dollars into the treasury of the City of Jefferson, annually for ten years, commencing at the time the ferry was ready for business, was a breach of his bond. (Act to establish a steam ferry at Jefferson City, Sess. Acts 1855, p. 513-14.) The bond is conditioned “ for the faithful performance of his duties under this act.” The payment of the money into the treasury is manifestly one of such duties.

The plaintiff asked the following instructions, to wit: “If the jury believe from the evidence, that on or about the 14th day of September, 1858, plaintiff sold defendant a slave named Ned for $1,000, and that plaintiff and defendant there agreed that the defendant should discharge and pay same amount or part thereof by the sale and delivery to plaintiff of another slave named Aaron, alias Rock, and that the value of the last named slave was to be fixed by J. B. Gardenhire,…

The endorsements on the bond, purporting to be credits entered by the clerk for payments made thereon from time to time, during a term of years, and purporting to have been made before the demand became stale and before the time limited by the statute had expired, were competent evidence to take the case out of the statute, and should not have been rejected by the court. (1 Greenl. Ev. § 121; Ang. Lim. § 242; 39 Eng. L. & Eq. 62 ; Briggs v. Wilson, Chit.

John L. Wilmot being indebted to Elliott and Higgins, made a bill of sale absolute upon its face, conveying to Cook-sey certain hemp and wheat. The bill of sale recited the indebtedness, and in consideration that Cooksey should pay the debts mentioned, conveyed the property without reservation. Cooksey took possession. Hackley (the plaintiff) took an attachment against Wilmot and caused it to bo levied upon the property conveyed to Cooksey.

Sait apon a sheriff’s bond. Breach, that the sheriff had, upon divers specified executions, collected for the relators .specified sums taxed for printing orders of publication. Defendant demurred for the reasons — 1. That several causes of action were united under one count; 2. That the petition showed no cause of action in the relators ; 3. That there was a defect of parties plaintiff. The court sustained the demurrer and the plaintiff appealed.

<p> Appeal from Macon Circuit Court. </p>

The defence set up in the answer is good. The answer shows want of consideration and fraud in the note, which constitutes a valid defence. (Smith on Contri, p. 120.) The maxim “ ex turpi causa non oritur actio f applies in this case. The answer shows that the contract upon which suit is brought had its origin in a fraud, and each party was parti-ceps criminis. It is immaterial whether the illegality be part of or only introductory to the cause of the action.

The facts are sufficiently stated in the opinion. The verdict of the jury was clearly against both the law and evidence in the cause, and wholly unauthorized by either. (19 Mo. 433; 1 Pars. Contr. 530, § 1; 14'Wend. 209; 5 Cow. 531; 20 Barb. 387; see Stat. Limit., 2 vol. Mo. Stat. 1048, § 3.)

<p>Practice — Counsel—Jury.—It is within the discretion of the court to limit the time for the argument of counsel to the jury, and such discretion will not be revised by the Supreme Court unless it has been unsoundly exercised to the prejudice of the rights of the party.</p>

<p> Appeal from Macon Circuit Court. </p>

This suit was instituted April 8, 1861, eleven months after the race was run. The defendant does not allege that he paid the money over to the party to the bet or wager before the race was run, or previous to the expiration of the time agreed upon by the parties for the determination of the bet.

The facts are stated in the opinion. The court gave the following instructions for plaintiff: 1. [See opinion.] 2. That the promise of the church, or any committee of the church, to pay the amount, is not sufficient to discharge the defendant from his liability to the plaintiff, unless the same was reduced to writing, or some memorandum thereof made by the persons promising to pay, and signed by them or him. 3.

J. 0. Drake and Thomas Y. Bates executed to the plaintiff their joint and several note, dated Aug. 15, 1856, payable twelve months after date, with ten per cent, interest. Bates was but a security although signing as joint debtor. After the execution of the note Drake died and his estate was administered, but the note was not presented for allowance against his estate within three years.

I. The note sued on in this case having been executed to the plaintiff by James F. Hudgens and Henry C. Garner in their individual names, and not in the partnership name of Wm. Hudgens & Co., (of which partnership defendants Bayless and Wm. Hudgens were members,) the same was not the note of, nor binding upon, said Bayless and Wm. Hudgens, and it makes no difference that the money for which said note was discounted was applied to the uses of said firm.

jError to De Kalb Circuit Court.' We are aware that almost the very question presented by the record in this case has been before and passed upon by this court since this case was brought to this court; but as we think the principle involved in this case is somewhat different from the one decided, and as we think, under what seems to be the ruling of the court in the case referred to, (if said ruling should govern this case) the hardship and injustice done the plaintiff…

In order to prove the execution of the note plaintiff had a right certainly to prove that it had been executed by defendant, or by his authorized' agent. In order to do so, ho offered to prove that this note was executed by his partner (who was his agent) in the regular course of the partnership business and on partnership account; this tended to prove an authority to execute the note, or to prove the execution of the note by said defendant.

Corby, as administrator of Flaherty, commenced in the Buchanan Court of Common Pleas three suits.

<p> Appeal from Buchanan Court of Common Pleas. </p> <p>This was a suit for a breach of contract in failing to transport and deliver to plaintiff at St. Joseph, goods received by-defendant at Palmyra. Part of the goods received were delivered to the plaintiff, part having been taken by soldiers, as alleged by defendant, from the dépdt at Palmyra.</p>

I. The court erred in granting the instruction of plaintiff. By this instruction the plaintiff sought to recover on a cause of action different from the one stated in his petition. The cause of action stated in the petition was that appellants had first rescinded the written contract with Armstrong & Bent, and then, falsely and fraudulently representing to respondent that it was still in force, had induced him to pay $600 thereon.

<p>1. Railroads — Damages.—In an action against a railroad company for animals killed on the track, if the accident occur on a portion of the road not enclosed by a lawful fence, and not at the crossing of a public highway, actual negligence need not be shown. (R. C. 1855, p. 649, § 6.)</p> <p>2. Evidence — Examination of Witness. — The order in which questions may be put to a witness so as to elicit his knowledge oE the matters in dispute, rests in the discretion of the court. Proper practice in such cases.</p>

Louis Circuit Court. Plaintiff sued Belt as maker, Sturgeon & Bro. and Crick-ard (who owned the note) as endorsers. Defendants, Belt and Sturgeon & Bro., prayed the following instructions, which were refused, and defendants excepted : 1. If Bernard Crickard did not endorse and deliver to plaintiff the note sued upon for value received, but only for collection, then said plaintiff cannot recover in this action under the pleadings. 2.

<p>Practice — Exceptions.—No point saved for the consideration of the court.</p>

Louis Common Pleas. ' Conditions not allowed by law, when inserted in a statutory bond, are illegal and void. I. The summary remedy provided for by the statutes in the Landlord and Tenant Act should be strictly construed, and the landlord should not be allowed any more privileges thereby than such as the law clearly allows. II.

Louis Circuit Court. The plaintiff contends, that the court erred in excluding so much of the testimony of the witness Frisbee as was derived from White’s books. The plaintiff further contends, that the court erred in excluding so much of the testimony of the witness Brimmer as was derived from the books of Boswell. Brimmer had been for years the book-keeper of Boswell, and continued to be so up to the 26th day of March, 1859.

Louis Law Commissioner's Court. I. Attention is called to the language of the special act, and to the well established rules of interpretation. This special law does not expressly prohibit the justice from delivering process to other constables of his township, and the general law says that he shall have the general authority to deliver generally to the constables of his township, unless expressly otherwise directed.

<p>Practice. — No point saved for the action of the court.</p>

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

I. The demurrer should have been overruled as to the first count in the petition. Prior to the revision of 1845, the right of recovery against an assignor, in case of insolvency of the maker, was limited by the words of the statute to the “ assignee of a bond or note other than a negotiable note.” (R. C. 1835, p. 105, § 9.) The note in the case of Davis v. Francisco (11 Mo. 572) was governed by that statute.

Louis Circuit Court. For statement of the facts, see opinion. The court, at the request of the plaintiffs, gave the following instruction. (See opinion.) To the giving of this instruction the defendants excepted. The defendants asked the court to give the following instructions : 1.

Louis Land Court. The authorities referred to by defendant in no way affect this question, for metes and bounds in this case are as much for plaintiff as for defendant, and the principle, in the cases referred to, will help neither party. In the absence of authority in point for this case, it is left to stand upon the particular words and terms of the deed.

Louis Criminal Court. If the proof shows anything, it proves a rape; the jury return that it is no rape, but an assault to commit one.

I. That the tenant is presumed in holding over to hold according to terms of preceding lease, is evident. (Opinion of Lord Ellenborough in Boraston v. Creen, 16 East. 71 ; Doe on dem. Riggs v. Bell, 5 T. R. 471.) II. That tenant was liable to the end of month in which he quit, (10 Mo. 601; 19 Mo. 132.) In fact both of the above principles are too plain to need authorities; they will be found in all the elementary works.

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Circuit Court. The principal question is as to the measure of compensation under such circumstances. In the instructions given by the respondent the court ruled that notwithstanding the goods were tendered back to him, still Jhe was entitled to receive their full value with interest. This, we think, was erroneous.

Louis Circuit Court. I. The judgment of the court below does not follow the pleadings, and is therefore irregular. The only issue made in the pleadings was between the plaintiffs and the inter-pleader, in respect to which the court renders no judgment.

Louis Circuit Court. This court has decided that it will not interfere with the judgment of the court below, refusing to set aside a judgment by default, when it appears there has been gross negligence on the part of the defendant. (Faber v. Bruner, 8 Mo. 541.) And again, this court has decided, over and over again, that no distinction is made between the negligence of a party and the negligence of his attorney.

Louis Land Court. The petition was as follows: “ In St. Louis Land Court, October Term, 1861. James S. Dougherty, plaintiff, v. Leonard Matthews, defendant.

Plaintiff submits that the court below erred in excluding the letters of administration on the estate of Denny. The plaintiff’s claim rested on these letters, and without them as evidence no recovery could be had; and no further proof as to the fact that no letters had been taken out on Capen’s estate, the fact that plaintiff had given the proper bond, and such other facts as might have been necessary to establish plaintiff’s claim, would have been of any avail.

Louis Circuit Court. I. The Circuit Court erred in admitting the deposition of Benjamin Heaton, the whole of which was objected to; it contained much hearsay. The statement of what Bohrman had said about his agency and the ownership of the wood ought to have been excluded. Bohrman was alive at the time of the trial, and if he was a competent witness might have been called to testify in the cause.