Hicks v. Chouteau

• Decision Date: 31 January 1849
• Citation: 12 Mo. 341
• Parties: HICKS v. CHOUTEAU, ADMINISTRATOR OF CHOUTEAU.
• Court: Missouri Supreme Court

12 Mo. 341

HICKS

v.CHOUTEAU, ADMINISTRATOR OF CHOUTEAU.

Supreme Court of Missouri.

January Term, 1849.

APPEAL FROM JACKSON CIRCUIT COURT.

HAYDEN, for Appellant.

1st. The Circuit Court erred in permitting the said plaintiff to read in evidence to the jury the said administration bond supposed to have been executed by defendant (as one of the securities therein) upon the proof offered and given by plaintiff of its execution. The verbal testimony of Swearengen does not show that Hicks was not present when he subscribed Hicks' name to the bond. This was necessary, and that the same was done in his presence and with his consent, or by his direction, or that the instrument as a deed or bond, was made by Swearengen under an authority by an instrument of equal dignity in law, if done out of the presence of Hicks, any other mode, if tolerated, would virtually put it in the power of another under a pretense of having a parol authority, to make a person a deed for his lands or penal bond charging him with any amount whatever. This cannot be law. See 2 Greenl. Ev. p. 243, § 295; 1 Nev. & Man. 566. The witness does not pretend that he had a general authority to act for Hicks, nor that he has any recollection of having a special authority so to do. A general authority is required to be proved, and why not a special one. See 1 Phillips' Ev. 104-105 and authorities referred to.

2nd. That the court erred in permitting the plaintiff to read to the jury the said transcripts of the records of the Jackson County Court and every of them, as evidence against Hicks. They were not evidence against him. He was no party thereto, and having had no notice actual or constructive of the proceedings therein ordered adjudged or had by the County Court, they were no more evidence or binding upon him than any other judicial proceeding or act of a court, between strangers or others would be binding upon him or evidence against his rights. He cannot be presumed to have given his assent thereto because there is no evidence that he ever had any knowledge of what was being done or actually done by the court, until the record was read against him.STRINGFELLOW, for Appellee.

1st. The evidence of the execution of the bond was competent and was sufficient to authorize the reading of the bond in evidence to the jury; any competent evidence of its execution however slight authorizes the reading of a bond in evidence. It is then for the jury to decide upon the sufficiency of the proof. 8 Pick. 144; 2 Wash, 58; 1 Binn. 430; 1 Coxe, 10; 6 Serg. & Rawle, 12; 2 Hay. 338. 2nd. The statute prohibiting an attorney at law from being security on an administrator's bond is merely directory, and will not avoid a bond as to one who has executed such bond: 10 Peters, 343; 3 Mass. R. 86; 5 Mass. R. 313; 14 Mass. R. 16; 7 Johns. 549.

NAPTON, J.

This was an action of assumpsit brought by Cyprian Chouteau, administrator of Francis Chouteau, to recover the half of $252 40, paid by said Francis, as co-security with Hicks upon the administration bond of one Youcherein.

Only two points are presented by the record. 1. The defendant, Hicks, proved that he was an attorney and counselor at law when his name was signed to the administration bond, and he relied upon the 16th section of the 1st article of the act concerning Administration, which prohibits sheriffs, clerks and their deputies, and attorneys at law from being taken as security on such bonds, as discharging him from liability. This defense was overruled in the Circuit Court. 2. The proof of the execution of the bond by Hicks was also objected to, as insufficient to authorize the bond to go to the jury. The proof was this: John R. Swearengen testified that the signature of Hicks was not in the hand-writing of Hicks, but in that of the witness; that he had no recollection of having signed for Hicks, and remembered none of the circumstances attending the transaction; but he knew he would not have signed Hicks' name unless he had been specially directed by Hicks so to do, because he was not in the habit of doing such things. This witness further stated that if the defendant had directed him to sign his (defendant's) name to the bond, he (the witness) should have done...