Wilcox v. Woods et al.

W. A. MINSHALL and C. WALKER, for the appellees.

TREAT, Justice, delivered the opinion of the Court:

The declaration in this cause states, that "James Woods, William T. Christy, and James C. Christy, partners in trade, under the name of Woods, Christy & Co., complain of Nathaniel G. Wilcox, in a plea of trespass on the case on promises, for that whereas the said defendant, on the twenty-seventh day of June, in the year of our Lord one thousand eight hundred and thirty-eight, at St. Louis, to wit, at the County of Schuyler, and State aforesaid, made his certain promissory note in writing, and subscribed it by the signature of Ñ. G. Wilcox, and delivered the same to the said plaintiffs, and thereby promised to pay to the order of Woods, Christy & Co., without defalcation, or discount, two hundred and fifty dollars and sixty-three hundredths, for value received, six months after the date thereof, which period has now elapsed, and the said defendant, then and there, in consideration of the premises, promised to pay the amount of said note to the said plaintiffs, by the said name of their firm, Woods, Christy & Co.," &c. To this declaration Wilcox filed a general demurrer. The record shows no joinder in demurrer.

The following entry appears on the record: "This day came the parties, by their attorneys, and the defendant's attorney files his demurrer to plaintiffs' declaration, which is overruled by the Court, and the defendant declining to answer further, on motion of the plaintiffs' attorney, judgment by default is rendered in favor of the plaintiffs, and against the defendant, for the sum of two hundred and eighty-one dollars and nineteen cents damages. It is therefore considered," &c.

The appellant assigns for error,

First. The Court erred in overruling the demurrer ;

Second. In overruling the demurrer when the same had not been joined;

Third. In rendering judgment when demurrer was unanswered;

Fourth. In rendering judgment by default, for the sum of $281.19, without having the damages assessed.

We can see no objection to the declaration on general demurrer. The note is described as payable to Woods, Christy & Co., and the plaintiffs are described, in the commencement of their declaration, as partners in trade under that name. After describing the note, the declaration avers that the defendant, in consideration, &c., promised to pay the amount of said note to the plaintiffs, by the name of their firm. We think the declaration shows a right of action in the plaintiffs, and that the demurrer was correctly overruled. But it is said, it was error to overrule the demurrer, when the plaintiffs had not joined in demurrer. After judgment, the Court will presume that there was a joinder in de

Mills et al. v. The County Commissioners of St. Clair County.

murrer, or that it was waived by the defendant, especially, as in this case, where no objection appears of record. The Court was right in rendering judgment upon the overruling of the demurrer, and the defendant declining further to defend, (1) although the record shows a want of joinder in demurrer.

Did the Court err in rendering judgment, without having the damages assessed by the clerk or jury?

The thirteenth section of the act concerning practice, (2) provides that the Court may direct the clerk to assess the damages, in any action brought on any instrument of writing for the payment of money only, when judgment shall be given against the defendant by default. We apprehend this statute was not intended as imperative upon the Court to require the clerk to make the assessment, but that it is perfectly competent for the Court to do it. (3)

error.

It is alleged that the Court erred in rendering judgment for a larger amount than the note, as set out in the declaration, shows the plaintiffs entitled to recover. This cannot be assigned for The proper remedy of the party was by motion in the Court below, where the error could have been corrected. (4) The judgment of the Court below is affirmed with costs. Judgment affirmed.

ADAM L. MILLS et al., appellants, v. THE COUNTY COMMISSIONERS OF ST. CLAIR COUNTY, appellees.

Appeal from Jackson.

It is a principle of the common law, that ferries are publici juris, and can be granted by the sovereign power. Riparian possessors are not, by virtue of such possession, entitled to the ferry franchise.

The statute of this State, in relation to ferries, gives to the owners of land adjoining to, or embracing the water course over which a ferry is proposed to be established, a preference over others, provided the privilege shall not have been granted to any other person; thus clearly recognising the common law principle, and imply. ing a power in the public to make a grant of the privilege to persons other than the owners of the land.

Possession of a ferry franchise, for a less term than twenty years, is not evidence of a grant, or of a right to the same.

In assessing the damages which the owners of land taken for a public road and ferry landing, under the "Act to authorize St. Clair County to establish a Ferry across the Mississippi River," may sustain, neither the value of the ferry of such owners, across the same river, or of the ferry privilege, are to be taken into consideration.

THE proceedings in this cause, in the Jackson Circuit Court,

(1) Clemson et al. v. The State Bank, 1 Scam. 45; Godfrey et al. v. Buckmaster, 1 Scam. 447. (2) R. L. 490; Gale's Stat. 532. (3) Dunbar v. Bonesteel, Ante 32; Greenup et al. v. Woodworth, Breese 179; Rust. Frothingham et al., Breese 258.

(4) Sims v. Hugsby, Breese's appendix 27.

Mills et al. v. The County Commissioners of St. Clair County.

were had at the April term, 1840, before the Hon. Walter B. Scates.

S. T. LOGAN, for the appellants.

LYMAN TRUMBULL, for the appellees.

BREESE, Justice, delivered the opinion of the Court:

On the 2d day of March, 1839, the legislature passed an act, entitled "An Act to authorize St. Clair County to establish a Ferry across the Mississippi River." (1) Commissioners were appointed, by the act, to examine the ground, and locate a road and ferry landing between Cahokia creek and the Mississippi river, opposite St. Louis, three hundred feet wide, on the most eligible ground for that purpose, and to report their proceedings to the County Commissioners' Court of St. Clair county; and the road and ferry landing, when so located, was to be and remain a public highway forever. The second section of the act authorizes and empowers that Court to cause the land on which the road and ferry landing should be located, to be condemned, and to pay to the legal owner or owners of the land, the damages sustained thereby, by the owner or owners, and after the land was condemned, and the damages paid out of the funds of the county, that Court was empowered, by their agents, or otherwise, to enter upon the land so condemned, and establish a ferry across the Mississippi river. The third section provides, that for the purpose of ascertaining the compensation to the legal owner or owners of the land thus appropriated for public use, the sheriff of said county is required to summon twelve good and lawful men, who, being sworn by him, shall, in view of the land, certify the amount of damages which such owner or owners may sustain by reason of the location of the road and ferry landing, and return the same to the County Commissioners' Court, to be there filed. An appeal is allowed from the assessment, by either party, to the Circuit Court, and upon notice of such appeal, the sheriff is required to file all proceedings before him, in the clerk's office of that Court, and the Circuit Court is required to make a new assessment, by a jury, in a summary manner, "which shall be final and conclusive between the parties." The assessment was made in pursuance of the statute, from which the appellants appealed to the Circuit Court of St. Clair county. A subsequent act authorized a change of venue, in such cases, and on application of the appellants, the cause was sent to Jackson county. A trial was there had, and a verdict rendered in favor of the appellants, for $600, upon which the following entry was made by the Court: "It is, therefore, ordered by the Court, that the clerk certify to the County Commissioners' Court of St. Clair county, a copy of this order, and also the damages and costs herein."

(1) Laws of 1839, 175.

Mills et al. v. The County Commissioners of St. Clair County.

On the trial of the cause, the appellants, as appears by the bill of exceptions, proved that they had been for seven years in peaceable possession of said land, as well above as below, being the same on which the St. Louis ferry is and has been located, and that they derived their possession immediately from one Samuel Wiggins, who had also been in continued and peaceable possession ever since the witness knew the land, which was six years before said appellants got possession. They then asked the witness, what was the value of said ferry on said land occupied and used by them; to which question the county of St. Clair, by their counsel, objected, and the objection was sustained by the Courtthe Court deciding that the appellants could not enquire into the value of said ferry, or as to any injury done to said ferry privilege. They also asked the Court to instruct the jury, that in estimating the damages to the land appropriated for the road and ferry landing, they will take into consideration the damages done to the ferry rights of the owners of the land over which said road passes, and if they believe, from the evidence, that the owners of the land in question, are now in possession and use of a ferry, and that the appropriation and use of said road and ferry landing, by the county of St. Clair, will injure the use of said ferry rights, and lessen the value of the land, they will take said damage and injury into consideration; which several instructions the Court refused to give, to which the appellants excepted, and have appealed to this Court, and assign for error such refusal.

It might, perhaps, be questioned, whether an appeal can be taken to this Court, in a case like this. The practice act (1) provides, that "Appeals from the Circuit Courts to the Supreme Court, shall be allowed in all cases where the judgment or decree appealed from, be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold." Under this act, there must be some judgment of the Court, before an appeal can be taken. Here there does not appear to be any; the Court does not pass upon the assessment of damages, by rendering a judgment for the amount found by the jury, but directs the amount of it to be certified to the County Commissioners' Court of St. Clair county. But passing by this point, there being no motion to dismiss the appeal, we will proceed to the consideration of the questions arising out of the evidence given above, and the instructions asked for by the appellants, and refused by the Court.

To ascertain the propriety of the instructions asked for, we must consider, admitting that the appellants exhibited sufficient proof of title to the land, what their ferry rights, as owners of land bordering upon a water course declared navigable by law, are.

It is a principle of the common law, that ferries are publici juris, and can be granted by the sovereign power. If this be admitted,

(1) R. L. 494; Gale's Stat. 535.

Palmer v. Logan.

it follows that riparian possessors are not thereby entitled to the franchise.

Has our statute changed this principle? The "Act to provide for the establishment of Ferries, Toll Bridges and Turnpike Roads," (1) gives to the owners of land adjoining to, or embracing the water course over which a ferry is proposed to be established, a preference over others, provided the privilege shall not have been granted to any other person; thus clearly recognising the common law principle, and implying a power in the public to make the grant to persons other than the owners of the land.

All the proof exhibited by the owners of the land, the appellants, of a right to this ferry franchise, was possession in themselves, and in Wiggins, under whom they claimed, of thirteen years only. No license was shown, and no grant, and we are satisfied that the proof shown was not sufficient; less than twenty years possession by which a grant might be presumed, would not avail.

An injury, then, to a right which was not proved to exist in the appellants, as owners of the land, could not be a proper subject of enquiry.

We are, therefore, of opinion, that the Circuit Court decided right in refusing the instructions, and accordingly affirm the judgment with costs.

Judgment affirmed.

ERASTUS W. PALMER, appellant, v. RICHARD A. LOGAN,

appellee.

Appeal from Morgan.

In an action upon a lost note, where the evidence of the destruction of the note is not conclusive, the plaintiff must show that diligent search has been made in those places where it would be most likely to be found, if in existence.

Before a copy of a lost note can be received in evidence, as a general rule, the existence and loss or destruction of the original must be proved.

The testimony of a plaintiff, addressed to the Court only, is admissible to prove the loss of an instrument in writing, so as to lay the foundation for the introduction of inferior proof of its execution and contents; but this testimony should be by affidavit.

Parol proof is admissible to prove the contents of an instrument in writing, which is lost, of which there is no second higher grade of evidence, after a foundation is laid for the introduction of such proof.

In an action upon lost notes, the preliminary affidavit of the loss stated the execu tion of the notes, and that the same were unpaid and not discharged, and had been lost or destroyed, without the consent or knowledge of the plaintiff, and that he was unable to find or obtain them, so as to produce them on the trial, and that he, the plaintiff, had been informed and believed, that the said notes had been fraudulently obtained by the defendant, and were then in his possession, or had been destroyed by him: Held, that the affidavit was insufficient, in not showing with sufficient certainty, whether the notes were in the hands of the defendant, or de

(2) R. L. 302; Gale's Stat. 304.