33 Mo. 547 (Mo. 1863), Livermore v. Eddy's Adm'r

Citation:33 Mo. 547
Opinion Judge:DRYDEN, Judge
Party Name:LIVERMORE AND COOLEY, Appellants, v. JAMES H. EDDY'S ADMINISTRATOR, MANLIUS BRANHAM, Respondent.
Attorney:Bland and Colman, for appellants. Lackland, Cline & Jamison, for respondent.
Court:Supreme Court of Missouri
 
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Page 547

33 Mo. 547 (Mo. 1863)

LIVERMORE AND COOLEY, Appellants,

v.

JAMES H. EDDY'S ADMINISTRATOR, MANLIUS BRANHAM, Respondent.

Supreme Court of Missouri.

March Term, 1863

Appeal from St. Louis Land Court.

Bland and Colman, for appellants.

I. The court erred in admitting the deposition of Voorhis. The 28th section of the act concerning depositions (R. C. 1855, p. 658) specifies the cases in which depositions may be read and used in evidence, and in no other cases may they be so read and used.

The first case provided for in this act is that where " the witness resides or is gone out of this State," and the defendant read from the deposition itself, without any other proof to establish the fact, that deponent had gone out of this State. Now we say, 1. It was not competent to establish such fact by the deposition itself, because the fact must first be made to appear to the court by some competent evidence before the deposition can have competency, or can be read or used as evidence in the cause for any purpose whatever. ( Grinnan v. Mockbee, 29 Mo. 345.)

2. Even assuming that a fact required by the statute to be established by the deposition itself--yet the statement in the deposition by the witness, to wit, " I start this evening for Salt Lake City, in Utah Territory, and shall be absent for a year or more," does not by any means establish the fact that at the time of the trial he resided or had gone out of the State. ( Gaul v. Grenger, 19 Mo. 541.)

II. The court erred in giving the second of said instructions. To constitute a surrender by operation of law, the landlord must not only accept it with the purpose of holding it, but of holding it discharged of the tenancy. ( Kerr v. Clark, 19 Mo. 132.) The removal of a tenant and giving the key to the landlord does not amount to a surrender. ( Prentiss v. Warne, 10 Mo. 601.)

Lackland, Cline & Jamison, for respondent.

I. There was error in the court below in giving instructions to the jury, because they were legal and proper and applicable to the case.

A surrender of the leased premises and acceptance thereof before the end of the term discharges the tenant from the payment of rent. (Davidson v. Donadi, 2 E. D. Smith's R. N.Y. 121; Guinmann v. Legge, 8 Barn. & Cress. 324; 5 Taunt. 518.)

II. The court did not err in admitting in evidence the deposition of Voorhis, because there...

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