Crook v. Peebly

• Decision Date: 31 January 1844
• Citation: 8 Mo. 344
• Parties: CROOK AND THURSTON v. PEEBLY.
• Court: Missouri Supreme Court

8 Mo. 344

CROOK AND THURSTON

v.PEEBLY.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM MORGAN CIRCUIT COURT.

RICHARDSON and KOUNSLA, for Appellants. 1. The Circuit Court erred in giving the instructions asked for by the plaintiff, and in refusing the first instruction asked for by the defendants. (The statute of 1835, concerning Strays, makes it the duty of the secretary of State to select and contract with one printer on each side of the Missouri river to print advertisements of strays, and requires the clerks of the county courts to furnish the printer with the proper papers for advertisement, and to account with the printer for publishing the same. The law of 1825 required the taker up of an estray to have a proper notice thereof printed in some newspaper; and in this respect the existing law upon the subject of strays differs from the law of 1825.) 2. The duties of the taker up of an estray cease, under the present law, when he has paid “to the clerk all fees, the necessary postage, and the price of advertisements;” and if the printer or clerk fails to do his duty, he forfeits to the county a penalty. See Digest of Mo. of 1825, 756; also, Digest of 1834 and 1835, p. 594-6. 3. Every officer is presumed to have performed his duty, and discharged the trusts enjoined upon him by the government, until the contrary is proved. Buller's Nisi Prius, 298, Hickman v. Boffman; Hardin's R. 348, Hartwell v. Root; 19 Johns. R. 362.

ADAMS and HAYDEN, for Appellee. 1. It was the duty of the defendants to show that every requisite of the stray law had been complied with, and not for the plaintiff below to prove a negative. See Harryman v. Titus, 3 Mo. R. 302; Laws of Mo. of 1835, title Strays. 2. That there is no presumption in favor of a party claiming title by an ex-parte proceeding; that officers or third persons have performed their duty; but the party who claims the title thus derived must make that appear Morton v. Reeds, 6 Mo. R. 64. 3. That there was no proof that the appraisers were disinterested, or that the stray had been advertised, and the verdict was therefore for the right party. See the case of Harryman v. Titus, above cited.

SCOTT, J.

This was an action of trover, brought by Peebly, against Crook and Thurston, for a horse, the property of Peebly, taken up by Thurston as a stray, and sold to Crook. On the trial, Peebly had a verdtct and judgment. The court below directed the jury, that it was necessary for the defendants, in order to show property in themselves, to prove that notice of the taking up of the horse as a stray had been published in some newspaper authorized to publish the same by law. This direction was excepted to,...