Adams v. Wilson

• Decision Date: 31 January 1847
• Citation: 10 Mo. 341
• Parties: ADAMS ET AL. v. WILSON.
• Court: Missouri Supreme Court

10 Mo. 341

ADAMS ET AL.

v.WILSON.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO PLATTE CIRCUIT COURT.

ALMOND, for Plaintiffs. The plaintiffs in error contend and insist that the Circuit Court, on the trial, committed error. 1st. In permitting the recognizances to be read in evidence on account of variance between them, and those set out in the declaration; the latter, as described in the declaration, having no blanks therein--and this objection was well taken under the issue made by the seventh plea. 2nd. Under the first instruction given by the court for defendants below, plaintiffs in error, the Circuit Court ought to have found for defendant, Cartwright, for the testimony of Justice Burns, plaintiff's own witness, amply and clearly sustains the hypothesis contained in said first instruction--for the said Circuit Court, in requiring said Cartwright to show affirmatively that he was not present at the new agreement between Justice Burns, said Thomas Adams, and plaintiff, Wilson, evidently committed error; for when plaintiff Wilson entered into a new contract with defendant Adams, after the signing said bond by Cartwright, it certainly devolved on him to show that said Cartwright assented to said new contract, and the testimony of said Justice Burns, and said first instruction, were legitimate and relevant under the issue made on the first plea of non est factum; Speak et al. v. United States, 9 Cranch's U. S. R. 28; Miller v. Stewart, 4 Wash. C. C. U. S. R. 26; S. P. Wooley v. Constant, 4 Johns. R. 54; O'Neale v. Long, 4 Cranch's U. S. R. 60; Bates v. Hinton, 4 Mo. R. 78; Payne v. Snell, 4 Mo. R. 238; Snowden v. McDaniel, 7 Mo. R. 313. 3rd. The second instruction ought to have been given for plaintiffs in error, for the law requires the recognizance to be entered into before the justice, and within ten days after the rendition of the judgment--and the law certainly in its spirit never intended securities to be bound in an appeal bond, which did not procure a lawful appeal. 4th. And the third instruction for plaintiffs in error releases Allen, if my position is correct as to Cartwright. 5th. The judgments, offered in evidence, varied materially from those set out in the various counts of the declaration, and ought to have been excluded, under the issue made on the second plea of nul tiel record, as to those very judgments. See Stapleton v. Benson, 8 Mo. R. 13; Blakey v. Saunders 9 Mo. R. 742: Bibbons v. Nixon, 4 Wend. 207. 6th. For the reasons and authorities given, the plaintiffs' instructions ought to have been refused,--and, 7th. The finding and judgment of the court ought to have been set aside and a new trial granted.

REES, for Defendant.

SCOTT, J.

This was an action on three several recognizances, taken on appeals from a justice of the peace to the Circuit Court. The declaration contained six counts, three counting on the instruments as bonds, and three as recognizances. The parties went to trial on the pleas of non est factum, nul tiel record, as to the judgments appealed from and set out in the plaintiff's declaration, and nul tiel record as to the recognizances of appeal.

The recognizances contained only the name of the appellant, or person appealing, the names of the sureties were omitted in the body of them, they ran thus: “Know all men by these presents, that we, Thomas Adams and ______, acknowledge ourselves,” &c. They were signed by the sureties. The justice before whom the causes were tried, testified that the recognizances were originally entered into before him by Adams,...