Volume 1 — Missouri Reports

<p>1. A. writ of error lies from the final decision, or judgment of the Circuit Court, on petition for dower.</p> <p>2. On petition for dower, damages may be recovered. Title to the premises, in which dower is claimed, need not be set forth in the petition.</p> <p>3. Judgement on demurrer, must be given against the party who committed the first error. (Note a.)</p> <p>4. "Where a widow is in possession of real estate, and afterwards rents it, she cannot have dower assigned against the tenant, but must pursue her remedy against him as her tenant.</p> <p>5. When an amended petition is filed after issue joined, and no further notice is taken on the record of the amended petition, this court will not consider it as forming a part of the case.</p>

<p>1. The Legislature of the Territory of Missouri had power to create a corporation, (Note a.)</p> <p>it. Where trusts are created by statute, an obligation to pay the trustees a greater sum, for any purpose than that which the statute authorizes, is void.</p>

<p>ON APPEAL from the Circuit Court of St. Louis county.</p>

<p>1. Where possession is acquired without privity of consent, no demand is necessary to maintain detinue.</p> <p>2. When A. acquires possession of a slave from B. by consent, and gives an instrument of writing, purporting that he had hired the slave, it is a proper question for the consideration of the jury, whether the instrument was intended as a contrivance to cover fraud; and if it be so found, the instrument is void.</p>

<p>1. When the record shews facts which may warrant a finding either one way or the other, according as extrinsic circumstances incline, the Court will not reverse a judgment because a new trial was refused.</p> <p>2. It is the duty of the Circuit Courts to instruct the jury on all principles of law applicable to the facts in evidence, but the bill of exceptions must shew what instructions were g'iven or refused, to enable this Court to correct the error.</p>

<p>Where a suit is against five persons, and only one is served with process, and judgment by default is taken against ajl, the judgment may be amended at the next ■term. Mistakes and misprision of the Clerk may be amended at any time.</p>

<p>1. The late Territorial Legislature of Missouri had power to incorporate a Bank.</p> <p>2. The Act of the Legislature, approved January 81, 1817, incorporating the Bank of Missouri, is a public law, although not signed by the President of the Legisláis fe Council.'</p>

<p>X. A covenant between partners to divide the goods on hand, upon the happening of a particular event, and upon final settlement to pay, &c., implies a covenant to make a final settlement when such division is made.</p> <p>2. A covenant under seal, to do a particular thing, requiring skill and judgment, cannot be performed by an agent. And a parol agreement between the parties, that it may be done by an agent, does not affect the original covenant.</p>

<p>Where a bill of exchange has been protested for non-payment; and no notice thereof given to the drawer, evidence of a subsequent promise to pay the'billata particular time, or in a specified mode, should go to a jury as evidence of a waiver of notice. (Note a.)</p> <p>Jones, J., dissenting.</p>

<p>1. In an action of trespass on the case, in assumpsit,, where there is a count on a special agreement, that work shall be done in a certain way, be completed at a particular time, and be paid for in property at a specified price, a count for work and labor done, and on an account stated, if the agreement offered in evidence varies from the one declared on, the party cannot recover on the other counts, although it appears from the evidence that the work was not done at the time, nor in the manner agreed upon; but otherwise, if there had been a count on a quantum me-ruit, or quantum valebant (Note a.)</p> <p>2. And when the plaintiffs produced a covenant for work to be done in a particular manner, to be completed by a certain day, and to be paid for in property at a fixed price, held, that parol evidence might he given of the work done, and that the party might recover on a quantum meruit, or quantum valebant, if it appeared that the work was not done according to the time contracted for. (Note a.)</p> <p>3. When A. agrees and covenants with JB. to execute a piece of work in a particular manner, to be finished at a particular time, and paid for in property at a stipulated price, the property to be chosen by A. held to be a mutual and dependant covenant and agreement, and B. may offer testimony to show his willingness or proposal to pay in the manner agreed on.</p>

<p>1. When goods were consigned to a firm composed of A. andB., and before their arrival A. was directed by the owner to deliver them to B. to be sold on commission, and A. acted as the agent of the owner, B. having at the same time a concern distinct from the firm, A. is a competent witness against B. in an action by the owner for the value of the goods.</p> <p>2. Misnomer of the plaintiff cannot be taken advantage of on the trial, but should be pleaded in abatement.</p> <p>3. When a party knows of testimony before trial, a new trial will not be granted unless due diligence be shown.</p> <p>Jones, J., dissenting.</p>

<p>An endorser of a prommissory note, or bill of exchange, is liable before the remedy is exhausted against the maker.</p>

<p>An endorser is liable on the failure of payment by the maker of a promissory note. Bank of Missouri competent under its charter to lake endorsements of promissory notes.</p>

<p>A judgment confessed before a Clerk, is not such a judgment as will warrant the issuing of an execution. The party should have the judgment entered up by the Court at the next term, and if not, then at a subsequent term after giving defendant due notice. (Note a.)</p>

<p>Trover does notlie for money, being' the amount of a prize ticket drawn in a lottery, unless the money has been set apart in kind, so that the right could specifically attach.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>APPEAL, from the Circuit Court of St. Louis county.</p>

<p>APPEAL from the Circuit Court of Jefferson county.</p>

<p>A dedimus to take depositions directed to “any Judge or Justice of the. Peace of the city of New Orleans," is bad. The statute provides that deposilions may be taken in certain cases before any Judge or Justice of the Peace of any of the united States or Territories, and the Courts of this State will not judieiallj take notice that the city of New Orleans is a municipal subdivision of any of the United States. (Note a.)</p>

<p>Merchandise received by a common carrier, to be delivered in good condition, “ the dangers of the river excepted,” gets wet in consequence of accident, and no exertion is made by the carrier to dry it, and it is damaged: held, that the bailee is liable. He should ha ve used his exertions to prevent the injury, as long as it would probably have availed any thing, and might, for the purpose of drying it, have opened the barrels in which it was contained. (Note a.)</p>

<p>A writ of error issued on 2d October, made returnable to the next term, which commenced on the 22d October, was to have been issued within twenty days next preceding- the term, and was, therefore, dismissed.</p>

<p>When, in an action of debt, the plaintiff, after pleas filed and issue joined, obtains leave for, and files an amended declaration in assumpsit,and, at a subsequent term, tabes judgment by nil dicit. the Court will not reverse the judgment for such irregularity, when the Court below was not called on to decide upon the points of irregularity. 1'</p>

<p>APPEAL from the Jefferson Circuit Court,</p>

<p>IN ERROR, from the Circuit Court of Jefferson County.</p>

<p>An agent of the United States cannot prosecute an action of assumpsit in his own name, where the interest in question is in the United States.</p> <p>Jones, J., dissenting.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>WRIT OF ERROR from the Circuit Court of Ste. Genevieve county.</p>

<p>1. The Court will not grant a writ of quo warranto against an officer, to show by what authority he exercises his office, upon a general statement that the officer is disqualified, and that he boards and sleeps at a particiilar place.</p> <p>2. Evidence that an assessor had not, at the time of his appointment, paid off all sums for which he may be accountable, is not sufficient to authorize a quo warranto tobe issued.</p>

<p>When a judgment is confessed before the Clerk, in vacation, and the Court after-wards refuses to have the judgment entered up as of the term next succeeding the confession, a mandamus will go in the alternative.</p>

<p>ON APPEAL from St. Charles Circuit Court.</p>

<p>3. When A borrows money of B. himself, without saying anything about a firm, although the firm of which A. is a partner may exist, and the money be applied to the payment of its debts, yet A., and not the firm, is responsible; especially when the fact is found that the loan was made on the responsibility of A.</p> <p>SS. Quere — If a case at law is submitted to a Court without a jury, will the Supreme Court revise the finding of the Court below, as to the facts. (Note a.)</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>, Where a judgment was confessed before the Clerk of a Circuit Court, an execution issued under the same, and the Sheriff made the money and paid it over; on motion of the defendant in the Execution v. the Sheriff, held that he was bound to execute the writ, the Court out of which it issued having jurisdiction of the cause. (Note a.)</p>

<p>IN ERROR from, the St. Louis Circuit Court.</p>

<p>When a j udgment was rendered against the defendant in error, for want of a joinder in error, on motion, the judgment was set aside, and the Court held, they were hound to look into the record and see whether there was error sufficient to reverse the judgment.</p>

<p>1. A Court of Equity will look into the condition of a penal bond, and give it a construction, although a Court of I.aw may have previously done so.</p> <p>”. A bond with the condition for the payment of §6 ooo in shaved deer skins, at -to cents per lb., is not to be so construed as to be worth one-sixth less than a bond for cash; nor is the measure of damages to be the real value of the peltry at the time of payment. A custom must have the force of law before it is binding-.</p> <p>3. Several injuries by separate persons cannot be joined In Chancery, any more than at law.</p>

<p>ON WRIT OE ERROR from St. Louis Circuit Court.</p>

<p>1. A statute imposing a penalty for a newly created offence, or for a breach of duty, and defining a particular remedy, must be strictly pursued.</p> <p>2. In an action on the bond of a Sheriff, against his securities, conditioned for the faithful performance of his duties, according to law, and for the payment of all moneys he might collect, &e.; it is held, that they were not liable for an alledged breach that he did not settle with the Court, inasmuch, as the act which made Sheriffs collectors, provided that bonds should be given as collectors, and in case of neglect or refusal to settle, particular remedy was provided.</p> <p>3. The intention of the Legislature governs the construction of the statute.</p>

<p>The offices of Circuit Attorneys under the Tenilory' of Mis'omi, -were abolished on the 28th November, 1320, by the operation ol the Slate Constitution, and the laws enacted in pursuance thereof; anti the fees of Circuit Attorneys were thenceforth governed by the State laws.</p>

<p>When an execution in favor of A. v. B., is returned that the money was not made by order of the plaintiff's attorney, and an alias execution is issued and put in the hands of the Sheriff, subsequently to an execution in fayor of C. v. B., and the property levied on is not sufficient to satisfy both executions, the claim of C. is to be first satisfied. A.’s first execution does not operate as a lien upon the property, after the writ has been returned.</p> <p>Querc. — Can such lien be continued by a succession of executions, without delay ?</p>

<p>1. A judgment may, as to matters 'of form, be amended at any time.</p> <p>2. When a plaintiff amends his declaration, and at the same time takes judgment by-default, this Court will not reverse the judgment, unless a motion be made in the Court below to set aside the judgment, and the refusal of the Court is excepted to, and made a part of the record.</p> <p>3. To constitute a good service, the declaration or petition should, as well as the writ, be read by the Sheriff to defendant.</p> <p>4. After judgment by default, it is irregular to move for leave to plead, before a motion to set aside the judgment is made. (Note a.)</p>

<p>ERROR from the Circuit Court of Howard county.</p>

<p>The statute which provides, that any writing, upon which an action is founded, shall be received in evidence, and its execution shall not be denied, except by plea, supported by affidavit, operates only as a change of the rule of evidence, which required the execution to be proved. (Note a.)</p>

<p>APPEAL from the Circuit Court of Howard county.</p>

<p>1. it is the duty of the Court to inquire into the constitutionality of an act of the Legislature.</p> <p>2. The act of the Legislature of this State, granting a stay of execution for two and a half years, unless the plaintiff or his agent will endorse thereon, that property at two-thirds of its value, will be taken in satisfaction, is repugnant to the Constitution of the united States and of this State, and, thererore, void (Note a.)</p>

<p>An action of debt lies on a bail bond given to a Sheriff.</p> <p>On such a bond, the suit is properly brought in the name of the Sheriff.</p>

<p>ON APPEAL from St. Charles Circuit Court.</p>

<p>In an indictment for assault and- battery, it is not necessary that the word a unlawfully,” should be used.</p>

<p>1. A scire facias lies on a bail bond.</p> <p>B. In an action on bail bond, by sci. fa., the prayer should be for the specific sum mentioned ih the bond.</p> <p>8 A bail bond may be assigned by. the Sheriff to the party in interest or suit may be brought in the name of the Sheriff, to the use of' the party interested.</p>

<p>ERROR from the St. Louis Circuit Court.</p>

<p>1. In an action of covenant on a bond, that the defendants “ would make, execute and deliver to the plaintiff, a good and sufficient warranty deed,” for certain real estate, the plaintiff need not aver, that he prepared and tendered to the defendants such a deed for them to execute. (Note a.)</p> <p>2. When A. covenants to do a particular thing', he shall be held to perform it, without the aid of the covenantee, unless such aid is indispensable.</p> <p>3. In such case, it is not necessary to aver a demand of the conveyance.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>IN ERROR from Jefferson Circuit Court.</p>

<p>IN ERROR from the Circuit Court of St. Louis county.</p>

<p>In sc:. fa. on a recognizance, if the prayer be wrong, it is matter of form, ami good on general ilemnner. The Court will give judgment for the right party, although the player of a plea be wrong.</p>

<p>1. An endorsee of a promissory note mayrecovfer against the immediate endorser.</p> <p>8. A piomissory note when endorsed, was, at common law, negotiable.</p>

<p>ERROR from Jefferson Circuit- Court.</p>

<p>Í. In an action of slander, where the words charged, are, that defendant said, “A . toolc or stole a sufficient quantity of corn to feed lw5 horses, out of my ci ib — he is a thief,1’ is satisfied by proof, that defendant said A. had come to the house of, and took his corn out of his crib, and fed his horses of nights, and would not open his bells until defendant had gone to bed — being words of sufficient import. (Note a.)</p> <p>2. When words are actionable in themselves, malice is always implied.</p>

<p>MOTION FOR CERTIORARI to the Superior Court of Chancery.</p>

<p>1. A bill, drawn 27th Nov., at St. Louis, on New Orleans, at sixty days sight, is presented in time on the 25th February, so as lo charge the payee by an endorsee; and, when the bill has been kept in circulation, such a presentation is good.</p> <p>2. An intermediate endorser is a competent witness in an action against the payee of a bill of exchange, he not being benefitted or injured by the event of the suit. Nor can the verdict bo given in evidence either for or against him. Each must, however, depend on the circumstances thereof, and on the effects of the evidence to be given in. (Note a.)</p>

<p>In an ae'tion cn a piomisrery note, it is not hecessary to set out the comidcralion fojr which the note was given. (Note a.)</p>

<p>1. Ill an action on a promissory note, the Court will not permit the note to be give» in evidence of the debt, if it appear to have been executed by agent, unless the authority be first proved, notwithstanding the defendant has pleaded non-assumpsit without oath.</p> <p>2. The eifect.of our statute, providing that defendant shall not deny the execution of a writing sued on, unless by jilea, under oath, is meiciy to change a rule of evidence, which requires the execution of the writing to bo jnoved, but does not dispense with tlie proof of authority, where the writing was executed bj agent. And in actions on simple contract writings, tire notes must be jtrndueed. (Note a.)</p> <p>3. An act done by an agent is void, unless the terms of the agency have been pursued. (Note b.)</p>

<p>The act of the Legislature, allowing a party to replevy or take a stay upon an execution, is unconstitutional, and a Sheriff who follows the act is personally liable for the amount of the execution.</p>

<p>When parlies, by their contract, have fixed their own measure of damages, the Court will not disturb their intention.</p>

<p>Í. A writ of error lies to the Supreme Court, in all prosecutions for offences nolcapi-' tal.</p> <p>2. Every citizen in this Slate has a right, by law, to have a judgment rendered against him, revised by a superior tribunal. (Note a.)</p> <p>3. Persons indicted for an assault and battery, cannot be acquitted because the proof shows that they were guilty of a riot, as well as an assault and battery.</p>

<p>ERROR from the Circuit Court of Cape Girardeau county.</p>

<p>1. A person residing in the Arkansas county was liable to he summoned or held to bail in the county of Cape Girardeau, (if found therein,) in an action by a person residing without the Missouri Territory, notwithstanding the act of the legislature of 1813</p> <p>2. The ant of Congress, cf Januar y 20, I8r i, severed the Arkansas county from the other larsof lire Territory, for every judicial purpose, except that of appeals and writs of error.</p>

<p>ERROR from the Circuit Court of Cape Girardeau county.</p>

<p>A person of whom a plaintiff purchased a slave, is a competent witness to prove the loss of a bill of sale for the slave, given by the defendant to the witness, notwithstanding the latter may have warranted the title to the plaintiff.</p>

<p>1. A writ of error lies, although the judgment or amount claimed be less than $100.</p> <p>2. An administrator is competent to testify to facts which came to his knowledge before administration.</p>

<p>When one of two defendants dies, before a judgment rendered against both, the error can only be corrected in the Court where the judgment was rendered, by writ of error, coram nobis, as error, in fact, can only be corrected where it accrued.</p>

<p>WRIT OE ERROR from the Circuit Court of Cape Girardeau county.</p>

<p>A mandamus will not he issued to a Circuit Court, to grant an appeal, because the party has his remedy by application to the Supreme Court, or a Judge thereof, in vacation.</p>

<p>IN ERROR, on scire facias.</p>

<p>An action on a-bail bond, must be brought in the name of. the Sheriif, to whom it was-given.</p>

<p>ERROR from the Circuit Court of Cape Girardeau county.</p>

<p>A judgment entered, for the amount of a recognizance, to be discharged by a lesa sum, is erroneous.</p>

<p>1. The proviso of the statute of limitations does not operate, unless there was sucha, removal or obstrueliou as did, in fact, defeat the party. (Note a.)</p> <p>2. Proof that plaintiff inquired for defendant, and could not find where he 'was, so as to sue, prevents the statute from running.</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>IN ERROR from the Circuit Court of St. Louis county.</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>3. The Legislature is competent to relieve from a forfeiture, even where the money is going to a county ; anil that after judgment,</p> <p>3. Where money accrues to a county, it cannot be said to be so vested as to prevent the control of the Legislature.</p>

<p>X. Proceedings to foreclose a mortgage, under our statute, are proceedings at common law, and not governed by rules in chancery.</p> <p>2. A deed made for lands, to be absolute on the payment of certain notes but in default of payment, to be void, is to be considered a mortgage. (Note a.)</p>

<p>*-n proceedings against the Bank of Missouri, “in a summary way,J’ the parties have? a right to a trial by jury.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>1. Obtaining bills of exchange by. false pretences,is an indictable offence under one stalule.</p> <p>2. The word “effects’’ in the statute, embraces bills of exchange.</p> <p>3. An indictment is well laid which charges that N. obtained bills by pretending he had slaves, which he sold for said bills, when in fact he had no slaves.</p>

<p>This Caurt -will not re-examine the evidence and correct errors in point of fact, but will only notice the errors in law,.as appear upon the record, in cases of the settlement of estates.</p> <p>Jones, J., dissenting.</p>

<p>1. Evidence that the words were spoken by others, and that the charge was a current report, cannot, under the general issue, be admitted, even in mitigation of damages. (Note a.)</p> <p>2. In an action of slander, for calling the plaintiff “a murderer,” proof of plaintiff’s general character may be given in evidence, in mitigation of damages under the plea of “ not guilty.”</p> <p>3. Evidence that a person told witness, that another had told him the plaintiff was guilty of murder, is not admissible.</p>

<p>When a cause is submitted to the Court, without a jury,, a judgment rendered, generally, without finding the issues between the parties, is erroneous. (Note a.)</p>

<p>ERROR from Cape Girardeau.</p>

<p>ERROR from Cape Girardeau Circuit Court.</p>

<p>When there is an issue of law, and an issue of fact, the issue of law should be first disposed of; and, to render a judgment, generally, in such a case, without finding the issue of fact, is error.</p>

<p>IN ERROR from the Circuit Court of Cape Girardeau county.</p>

<p>Where the Court gives an opinion on a point not presented by an issue of law, it must be saved by bill of exceptions, otherwise, it is no part of the record; and a motion to strike out, or to enter a nol. pros., is no part of the record, unless excepted to.</p>

<p>An action may be well brought on a bond given to a Judgo of Probate and his successors. in office, although that office is abolished, and the law authori2ing it ■ repealed. (Note a.)</p>

<p>IN ERROR from Cape Girardeau Circuit Court,</p>

<p>To support a writ of error, the record must show the foundation upon which the Court decided; and unless the pleadings show this, it must appear by the bill of exceptions. (Note a.)</p>

<p>A Justice of the Peace has jurisdiction of an action against an officer for ap escape, if the sum demanded does not exceed $50. •.</p>

<p>In an action on a bond made by two, with but one peal, held, that no advantage can be taken on general demurrer, but must be by a plea of non est factum, verified by affidavit.</p>

<p>ON A MANDAMUS to the Judge of the Circuit Court of Howard eounty, to enter up a judgment in this cause.</p>

<p>Want of consideration, or fraud, may be given in evidence, under the plea of non» assumpsit.</p>

<p>Where- there were two issues found in favor of defendant, and the error complained' of relates to only one of them, the Court will not reverse the judgment.</p> <p>Note. — The record shows that the issues were found by the Court, and that there was no evidence offered on the second issue.</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>IN ERROR from St. Louis Circuit Court.</p>

<p>A judgment in an action between the same parties, in the same form of action and, on the same note, is a bar to a subsequent suit, while that judgment is unreversed.</p>

<p>APPEAL from St. Louis Circuit Court.</p>

<p>ERROR from'the Circuit Court of St. Louis county.</p>

<p>Where a bond or note has been lost or mislaid, the obligor cannot be relieved from the interest for the time it was 6o lost, unless he had made a tender of the money.</p>

<p>EEROS from the St. bouis Circuit Court, in ejectment.</p>

<p>My the act of Congress of the 13th June, 1813, the claims to town and village lots' were confirmed, but it was left to the Courts of the country to decide between-conflicting claims; and confirmations made by the recorder of the lots mentioned make the title no better.</p>

<p>ERROR from the Circuit of St. Louis county.</p>

<p>A Sheriff and his sureties are not liable, on his official bond, for not delivering over to his successor, a writ of execution, which had not been levied.</p> <p>Jones, J., dissenting.</p>

<p>1. In action on a writing obligatory, made in the name of a firm, and it is ailedgedt that the persons composing the firm sealed the bond with their seal, after judgment hy nil dicit, all are bound.</p> <p>2. Oyer cannot be demanded after first term, or after the rule for pleading has expired.</p>

<p>1. An order, striking a cause from the docket,'is not such a judgment or decision from which an appeal oi; writ of error will lie.</p> <p>2. The interest of a joint obligee may be attached for his individual debt, in the hands of the obligor, but no more than his share can be so attached.</p>

<p>ERROR from St. Louis Circuit Court..</p>

<p>*. Where there is error in the proceedings below, the Court will not reverse, ifj upon-the whole matter, it appears that the judgment was-for the right party.</p> <p>2. Tenants in common, cannot join in ejectment.</p>

<p>1. A notice of set-off should contain the substance of a declaration.</p> <p>2. After dissolution of partnership, one partner cannot bind another by admission» relative to the partnership concerns. (Note a.)</p> <p>3. When instructions are given at the instance of the party succeeding, and the evidence upon which they were founded is not saved, the judgment will be reversed.</p> <p>4. Creditors may apply payments to either debt, unless therein directed by the debtor.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>?. Divorce: A deed of separation is no bar to an application for a divorce; and adultery, committed by either par ly, after such separation, is a good cause of divorce»</p> <p>‘i. One year’s residence of complainant is not necessary, previous to an application for a divorce a mensa et ■fioro. It is only necessary, where the application is for a divorce a vinculo matrimonii. (See acts of May 13, 1807, and January 29,1817,1 Territorial L of Mo., pp. 90 and 517.)</p> <p>3. Adultery is a good cause of divorce amensa et thoro, if committed within this State, or while the injured party is domiciled within this Slate.</p> <p>1. Different causes of divorce may be joined in the same bill.</p> <p>5. The cause for divorce ought to be specifically alledged in the bill, and not left to inference or presumption.</p>

<p>Where the appearance of a party was entered by mistake, and a judgment rendered against him, a Court of Chancery has no jurisdiction for the purposes of general relief, but may enjoin the judgment until the party can have a trial at law.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>An agent cannot sue in his own name when the legal interest is in his principal.</p>

<p>1, A New Madrid eertilieate and a copy of the survey of the land, are sufficient to maintain ejectment.</p> <p>3. Copies of surveys from the Surveyor General’s office, cannot he received in evidence, unless they are sworn copies.</p> <p>3. A certificate of the right of pre-emption is prima facial evidence of title against a New Madrid certificate and survey.</p>

<p>ERROR from Circuit Court.</p>

<p>ON MOTION for a supersedeas to a writ of error.</p>

<p>An endorsement of a bond, in blank, must be filled up at or before the trial, other-trise it is no evidence of an assignment. (Note a.)</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>Where judgment by default is rendered in an action of debt on a bond, the default is an admission of the debt as set forth in the declaration, and the plaintiff is entitled to judgment for the amount claimed, without producing the bond.</p>

<p>1. Sworn copies of ordinary contracts, made out by the Spanish authorities having: the custody of the original papers, with proof of the signature, and that the person certifying was acting in the office which he pretends to fill — admitted in evidence.</p> <p>2. A copy of a marriage contract, executed in the presence of the Lieutenant Governor and1 Spanish Commandant of upper Louisiana, with the certificate of the Commandant, that it was a copy of the original deposited, among the archives of said Territory — not good evidence of the marriage.</p>

<p>APPEAL from St. Charles Circuit Court.</p>

<p>1. An affidavit before any judicial officer of another State, authorized by the cominos Jaw and the practice of the Courts, to administer oaths, is good in this State, for the purpose of holding- to bail, or of granting an attachment. (Note a.)</p> <p>2. The official character of the officer is sufficiently proved by the certificate of the-Clerk, under the seal of the Court.</p> <p>3. A description precise as to quantity, and as particular as to location and boundary as deeds generally are, is sufficient in the Sheriff’s return of property, upon which he had levied:an attachment.</p> <p>4. In a bond given by the plaintiff in attachment, prior to the sale, conditioned for the return of the property condemned and sold, or the value thereof, the words, “goods and chattels,” will be taken to include lands-</p>

<p>1. A writ of inquiry under the statute, awarded after demurrer overruled, is well executed, although executed at the same term at which it was directed.</p> <p>2. On demurrer for variance, it must appear upon the record that oyer has been craved.</p> <p>3. The mere entry, by Clerk, on the record of oyer, in these words, “oyer of the writing obligatory,” is no oyer in law, although a copy of the writing be given.</p> <p>4. The capacity of the defendants as public agents, will not be taken notice of by the Court, unless the record shows that fact.</p>

<p>Upon issue joined, whether A. could have procured a title from the United States to a certain tract of land, located by him, by virtue of a New Madrid certificate— held, that a patent and certificate of survey to B. for the same tract, is not admissible evidence.</p>

<p>MOTION EOR RULE.</p>

<p>On an appeal from a .Justice of the Peace, the recognizance must be signed by th® appellant and his surety.</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>ERROR from St. Louis Circuit Court.'</p>

<p>The act of 1807 does not give jurisdiction to the1 Courts, to hear petitions for the few-closure- of a mortgage of personal property..</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>IN ERROR from the Circuit Court of St. Louis county.</p>

<p>K. "Where A. sold to B. one-third of his interest in two tracts of land, (of which he was joint owner with several others, and executed to B. a penal bond, binding himself to make a good title within three years, and took in payment $1000, and the residue in lands and lots — held, that if title is not made within the time, equity will not decree a specific performance against B. for either tract, although A. offered to make a good title to one, in time ; but Will-decree, that A. refund to B. the money paid, with interest, and pay the value of the lands conveyed to A. to which B, had good title ; although B. had no title to two tracts, which formed more than one half of the consideration of the first sale, and knew, at the time of the contract, that the legal title to the lands sold by A. was in the united States, and to be procured. The value- of the lands to be paid for by A. to be ascertained with reference to the time of the contract, and interest to be allowed.</p> <p>2. Time is materia); and after the time specified has elapsed, equity will not decree a specific performance of a contract, unless the party seeking it can show that he has made proper exertions to comply with his agreement, in time, nor unless the other party can be put in as good a situation, as if the agreement had been complied with at the time specified.</p> <p>3. Specific performance will be decreed, where the party, by some act, has waived the materiality .of time.</p>

<p>ERROR from Ste. Genevieve Circuit Court.</p>

<p>When A. permits E. to live on his land to take care of it, a trespass committed by C., is against the rights of A., and he can sustain hi's action.</p>

<p>Upon the return of the jury with their verdict, either party has the. right to cause the jury to be polled, and a refusal by the Court is error. Similiters may be added at any time.</p>

<p>ERROR from Cape Girardeau Circuit Court.</p>

<p>An executor cannot prosecute a writ of error on a judgment obtained in the life time of the testator, unless the death of the testator he suggested of record.</p>

<p>A judgment on a demurrer to a declaration, after leave to amend, and when the plaintiff refused to join in demurrer, is erroneous.</p>

<p>1. When a request is necessary to give a party a right to sue, such request must be specially stated in the declaration.</p> <p>2. A covenant to B. by C. to pay a specific sum of money, or to return a certain bond when called on by B., is a conditional covenant in favor of B., and he may claim the money or the bond.</p>

<p>On a rule for security for costs, to be filed in vacation, and the plaintiff fails until the next term, but then offers such security, before a motion to dismiss — held, that the bond should be received. (Note a.)</p>

<p>1. A bill, setting forth, that A. made improvements on a tract of land, and sold to B., and B. afterwards sold to C.; that A. afterwards fraudulently obtained a certificate for the pre-emption right, contains equity, and, to dismiss it, is errror.</p> <p>2. The decision of the Register and Receiver, in regard to pre-emption rights, is conclusive only against the government, and others are left to the Courts for their remedy.</p>

<p>'The jury must find all that is put in issue. So where in an action of trespass, not guilty, and a pica of justification were pleaded, and the jury found the defendant guilty, without saying any thing as to the’ last plea — held, that the verdict should, have been set aside, and judgment arrested.</p>

<p>APPEAL IN CHANCERY from the Cape Girardeau Circuit Court, and a decree-in the Court below, for the complainant.</p>

<p>The Court will not reverse a judgment, because á motion was made to rule the parly to give security for costs, when the grounds of the motion were not set forth, nor the motion decided on.</p>

<p>Equity will afford no further relief, in a ease where A. sold a tract of land to B., with a covenant of general warranty, the deed containing the words, “grants bargain, and sell,” and received part of the purchase money, and obtained a judgment for the balance, when he had no title to the land, than to enjoin the judgment until the party could prosecute his suit at law — the law affording a complete remedy.</p>

<p>1. In an action of replevin,-where the defendant pleaded property in himself and others, representatives of A. — property in B„ and also property in himself alone, and issues are joined, and the jury find for defendant on the first plea alone, disregarding- the other issues — held, that this finding is sufficient.</p> <p>8. A writ of execution cannot be recei ved in evidence, unless the judgment, under which it was issued, is first proved.</p> <p>3. The refusal to receive a bill of sale, offered in evidence, is no ground of error, unless it appears that it was first proved.</p>

<p>In debt on an obligation, with a condition, that the money should be paid when there should be a verdict or decision in a certain cause, in favor of A., and the declaration sets forth the happening of the contingency — held, that a plea,' denying that there was such decision, is properly concluded to the country. And where another plea is pleaded, that there is no such record of a decision as is alledged — held, that the defendant should be compelled to elect between them.</p>

<p>A sealed Instrument is not a note, and cannot be sued on as such.</p>

<p>1. In a suit in Chancery, defendants cannot be stricken out, on their own motion ; but if improperly made parties, they must demur or plead.</p> <p>2. A Court of Equity will not interfere, to set aside a will, on the ground of fraud in malting it. The party is left to his remedy at law. (Note a.)</p>

<p>Where the judgment before a Justice was for the defendant, and an appeal taken, it is sufficient, if the bond be conditioned, that, “if the judgment be affirmed, or the defendant recover more,” &c.</p>

<p>Devisees and legatees are incompetent witnesses to a will, but equity will not inter* fere to set aside the will. The remedy is at law. See Lyne ». Humphrey. (Note a.)</p>

<p>In an action on a promissory note, the defendant, under the general issue, will not be permitted to prove that the note was given in consideration of a tract of land, sold by plaintiffs at public vendue, and purchased by defendant, the plaintiffs falsely representing themselves as the heirs of L., when the title was in another, as the heir; and that they obtained the order of Court, under which they sold the land, by falsely and fraudulently representing themselves as the heirs of L. He has his remedy against the plaintiffs for the fraud, or in a Court of Equity.</p>

<p>1. A plea1 of puis darrien continuance, that the plaintiff has become an insolvent debtor, is bad, on- demurrer.</p> <p>2. After judgment, a plea, puis darrien continuance, cannot be withdrawn, and the party allowed to plead over any previously existing, matter. (Note a.)</p>

<p>1. Where a mortgagor, who was left in possession of slaves mortgaged, was aboat 1© remove them out of the country, before the time for payment had arrived, a Court of Chancery has jurisdiction to cause the property to be seized and detained.</p> <p>2. In an action on the case against a Sheriff, for failing to execute a writ, it is sufficient that the declaration shows, that there was a debt payable in future.</p>

<p>In an action by the payees against the drawers of a bill of exchange, the bill may be received in evidence, without proving the handwriting of the drawers.</p>

<p>WRIT OP ERROR from St. Charles Circuit Court.</p>

<p>WRIT OP ERROR, from Montgomery county Circuit Court.</p>

<p>1. A Justice of the Peace hasijurisdiction of an action “ on an accountfor by that is understood book account.</p> <p>2. When the horse of A. comes in the possession of B., and B. converts him to his own use, A. may waive the tort, and bring assumpsit.</p>

<p>In action of assumpsit against endorsers of a promissory note, a former verdict and judgment in favor of defendant, when the same note was offered in evidence, on a count for an account stated, is no bar. •</p>

<p>Í. The protest of a Notary should be received in evidence, in an action against the' drawer of a bill of exchange. (Note a.)</p> <p>2. A deposition of a Notary Public, in which he states that the bill of exchange was regularly presented for payment — regularly protested, and notice regularly given, to the drawer, without showing how these were done — held, to be sufficient to prevent the Court below from instructing the jury, that said deposition contained nothing to support the material allegations in the declaration.</p>

<p>1. In an action of debt, the sum mentioned in the querilnr, not being the amount of the sums set out in the several counts, is no ground of error.</p> <p>2. An omission to set out the name of the maker of the note, is cured by oyer given, and is supplied, if the name be mentioned in the preceding and subsequent parts of the declaration. It is a mere clerical error.</p> <p>3. When, in a subsequent count, the date, &e., of the writing obligatory is omitted, but reference is made to the previous count, in which two dates are specified,, the uncertainty, if any, is cured by oyer given.</p> <p>4. When the two first counts are demurred to,, and nil debel to the third, and the demurrers are overruled,, and a judgment rendered for the amount claimed in the two first counts, without any thing said of the issue, it is bad.</p>

<p>THIS is an action of ejectment.</p>

<p>In an action on an account commenced before a Justice of the Peace, an account made out in the the name of the wife of the plaintiff, does riot prevent the plaintiff from proving his claim, and recovering for the same. No account need be filed.</p>

<p>Where the declaration allcdges, that a judgment was recovered for $175 debt, $11 damages, and $19 43 1-2 costs, and the record offered in evidence shows no specific sum for costs, it is a fatal variance. (Note a.)</p>

<p>THIS is a suit in equity.</p>

<p>Before an appeal from a County to a Circuit Court can be taken, bond with sufficient security, to be approved of by the Court, must be given.</p>

<p>Where a cause is submitted to the Court, without a jury, and the defendant prays the opinion of the Court, whether the evidence does not raise a presumption that the note sued on had been paid and the Court gave that opinion, and found for defendant — held, that a writ of error would not lie, as no exception was taken to the admission of the evidence, but to the weight of it.</p>

<p>1. A plea that A. is not the next friend' of B'., who sues, is not good in liar, if it can' be pleaded at all.</p> <p>S. A plea, setting forth; that the bond sued on was obtained" by A., (from whom the' consideration moved,) and made-payable to C., by fraud, covin and misrepresentation,-is good. A general allegation of fraud, without specification, is good. (Note a.)</p> <p>3. In an action on1 a bond,- a plea sé tting forth, that- a1 part of the consideration was for a negro woman, who was falsely and-fraudulently represented to be sound, is a bad plea. (Note b.)</p> <p>4. The refusal to dismiss a cause from- the docliet, because there was no evidence to prove that the person styling himself next friend, was such, after pleading- to the merits, is no ground of error.-</p>

<p>Where A. had agreed to make a title to a lot to B,, who afterwards became indebted to C., and C. recovered judgment, but found no property on which to levy his execution, and A. conveyed the lot to the daughter of B. — held, that equity will interpose to prevent the fraud.</p>

<p>1. It is necessary to alledge anti prove a special demand, before a recovery of ten per cent, damages can be had against an officer, for money collected by him and not paid over.</p> <p>2.- Where a special demand'is necessary to the right of action, this must be proved, and1 the commencement of an action is no such demand.</p>

<p>APPEAL from the Cape Girardeau Circuit Court.</p>

<p>In an action of debt, on a recognizance of bail, where judgment was had against the principal for $1731 86 debt, and $53 07 for damages, as well by reason of tho detention of said debt, as far his costs and charges, &c., execution was issued for $1731 86 debt, and $41 12 for his damages, by reason of the detention of said debt, together with his costs and charges, by, &c., expended — upon demurrer, this variance is deemed immaterial. (Note a.)</p> <p>2. An action against bail, upon recognizance brought in a different county from that in which the former action was brought, is held to be well brought, the action not being local; and a plea, that after judgment, and before the filing of any'declaration in the suit, on recognizance of bail, the principal surrendered himself, is bad on general demurrer.</p>

<p>Where A. has a claim against B. for a sum of money, and C. pays it, A, is an incompetent witness for C, to prove that it was paid at the request of B.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>ERROR from the Circuit Court of St. Louis county.</p>

<p>An endorser is liable only for the amount paid by the endorsee.</p>

<p>It is the province of the jury to judge from the circumstances of the case, whether an admission by the defendant, that he was indebted to plaintiff, related to the note sued on, to determine the issue of non-assumpsU,withinJiDe years; and where there is testimony relative to the issue, the Court cannot instruct the jury that there is none.</p>

<p>¡i: Where there are several defendants, in a suit before a Justice of the Peace, and - an appeal taken by one, judgment cannot be rendered for those who did not join in the appeal.</p> <p>3.The testimony of a witness to prove a survey, is admissible, without producing the; plat of the survey.</p> <p>3. Where possession is proved, the, jury is to determine whether the acts of defendant amounted to trespass.</p> <p>4. The docket of a Justice is evidence of nothing-but what the law requires to b® written down.</p> <p>5. Where all the defendants will not join in the appeal to the Circuit Court, the one appealing must summon the others, and se-ver from-them-.</p>

<p>ERROR from the Washington Circuit Court.</p> <p>ERROR from St. Louis Circuit Court.</p>

<p>Where no answer is put in, to a bill in chancery, a final decree cannot be made before a decice «¿»i.</p>

<p>1. Su-it cannot be instituted in personam against one defendant, and in rem, against others.</p> <p>2. And in such a case, where all the defendants appear, and judgment is rendered against one, without regarding the others, it is error.</p>

<p>The jury must find all in issue; if they do not, the judgment should be arrested.</p>

<p>APPEAL from Circuit Court of Cape Girardeau county.</p>

<p>After a change of venue, directed by the Judge to another Circuit, and the papers are sent back, and the cause again docketed, and the defendants plead in bar, it is no error to which a writ of error will lie.</p>

<p>Where a New Madrid certificate was granted to S., or his legal representatives, after S. had sold the land to T., which certificate was conveyed by T., and located without an assignment or transfer from S. — held, that this is not sufficient to sustain an. action of ejectment,.by those claiming under T.. (Note a.)</p>

<p>Where there are issues of fact and issues of law, a general judgment on the demurrer, without disposing of the issues of fact,is error.</p>

<p>In an action of covenant, where the declaration contains two counts varying the description of the writing obligatory, and oyer being craved of the wi iting obligatory, in the declaration mentioned, one instrument only is set out, which varies from each count — held, that, on general demurrer, the plaintiff shall recover on the second count, inasmuch as that count sets forth a good cause of action, and defendant has not shown it was the same note.</p>

<p>A writ served by a Deputy Sheriff in his own name is had, and. a writ of error will lie. (Note a.)</p>

<p>The Court below is not bound to give instructions on abstract points of law; but the party praying the instructions must show that the state of the case warrants them. (Note a.)</p>

<p>1. It is competent for a witness to answer as to the value of property in dispute, anil to say wlia! such property would generally sell for.</p> <p>2. Evidence of a re-delivery should go in mitigation of damages, where the quiet possession iv^s restored.</p>

<p>1. Things personal in fhe'ir-nature, may become part oí the realty, by incorporating them with the realty,.for some permanent-object., ’or by affixing them to the realty in such a manner that they cannot be dissevered without dilapidation, or an injury to the inheritance; but a kettle or boiler, put up in a tannery, with brick and mortar, ’is not a fixture, unless there be something eise'to showit was so intended; -and especially, when it can be taken away withoiihinjury to the freehold. (Note a.)</p> <p>2. Annexations to the freehold, for purposes of trade and manufacture, are of a personal character.</p>

<p>1. Judgment confessed before the Olerk of the Circuit Court, in October, 1821, good. .And when it was obtained in the life time of debtor, execution may, at the expiration of eighteen months,-be issued against his property, without revival by sci. fa. (Note a.)</p> <p>2. Judgment againsbadministrators for the same debt, before the County Court, does not merge the former judgment in the Circuit Court.</p> <p>3. Judgment recovered by the State against,administrators, for monies collected as a public officer, has no.priority over a„judgment confessed by. defendant in. his life time, although the money was then due the State,-</p>

<p>i. The Court, sitting as a jury, must find upon all the issues made up.</p> <p>ft. Where A. executes a bond to B. to make a title to lands on a day certain, on con*dition that B. paid a certain sum of money on that day, and B. at the time, assigns • the bond to C. who then executed his note to A. for the sum of money-which was to be paid by B. to A. — held, that in an action on said note, the plaintiff need not 3how he was ready* and willing to convey, and that the assignment of B. was a sufficient consideration to support the promise from C. to A,</p>

<p>ERROR from the.'Cireuit Court of Sh,Louis county.,.</p>

<p>When a writ of execution has been issued, and returned' no!, satisfied, another writ may be issued, after a year and a day have elapsed, without a sci. fa. to revive-judgment. (Note a.)</p>

<p>IN ERROR from the Circuit’'Court of St. Louis county.</p>

<p>An indictment far betting- at Faro Bank, need not set outrfhe particular nature of the game, nor the name of the person with whom thebet -was made. (Note a.)</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>A j udgment obtained in another State, without notice^ will not sustain an action here. (Note a.)</p>

<p>A bill, setting forth that A. and B. executed their bond to S. for a sum of money, which was to be paid at a ceríain place, and A. paid half, and received a verbal release from S. for the remainder; that S. did not sue B., who was able to pay, and that after the death of S., and after B. had become insolvent, and after six or eight years had elapsed, the administrators of S. recover a judgment at law for the whole amount against A., contains no equity, and defendant is without remedy.</p>

<p>Ah índieiment charging A. with stealing a book of the value of is sufficiently certain, and the title of the book need not be stated.</p>

<p>1. A Justice of the Peace has jurisdiction in a suit on account for more than Sao, if the balance claimed be less than that sum.</p> <p>2. When the plaintiff,, in an appeal from a Justice of the Peace, recovers the same' amount in the Circuit Court, but afterwards remits a part, he is still entitled to his. costs on the appeal.</p> <p>3. After a bill of discovery, in a suit at law, is answered, specifically denying a claim, it requires two witnesses,, or one witness with strong corroborating circumstances,.to disprove the answer.</p>

<p>The State can foreclose a mortgage executed "iir considerationof loan office-money borrowed.</p>

<p>ERROR to the Circuit Court of Boone county.</p>

<p>1. Aplea of “nonest factum,” without affidavit, is no good ground for demurrer. The plea should be treated as a nullity. (Note a.)</p> <p>2. Confession of judgment is a release of errors, and the judgment cannot afterwards be arrested for defects in the declaration.</p>

<p>ON A WRIT OF ERROR from the Circuit Court of Howard county.</p>

<p>ON A WRIT OF ERROR from the Circuit Court of St. Charles county.</p>

<p>ON WRIT OF'ERROR from the judgment of the Circuit Court for the county of Montgomery.</p>

<p>A Sheriff has no power to admit to bail in criminal cases, and suit cannot he sustained on a bail bond so taken.</p>

<p>In an indictment, the place where the offence was committed must be charged in the body of the indictment — not sufficient to charge itin the margin only. (Note a.)</p>

<p>Equity will not relieve from a judgment recovered against A. upon a note executed to B., where A.’s defence is, that from the similarity of names, he thought it the same note he had executed to C., and that the consideration of the note to C. had failed.</p>

<p>j. A grant or concession By the Spanish government for a tract of land, and a survey-made and recorded, but the claim i ejected by the late Board of Commissioners, will not support a covenant that the grantors were lawfully seized,, &c., at the time of sale,</p> <p>3. The true criteria of damages on a breach of covenant of seisen, is the purchase money with interest. (Note a.)</p> <p>i. When there is no title, the covenant of seizin is broken as soon as it is made..</p>

<p>ERROR from Washington Circuit Court.-</p>

<p>ERROR frpm St. Louis Circuit Court.</p>

<p>1. A judgment is not assignable at law, further than to authorize the assignee to receive the money; the suit being in the name of the assignor.</p> <p>8. The assignment of a judgment to H., obtained against S. while H. was one of the firm of S. & Co., for a partnership debt, does not extinguish the debt.</p>

<p>Where a bill of sale was executed by A. to B., and A. was permitted to remain in .possession of the slaves sold, and A. dying in possession — held, that a sale made to C. by executors of A. for valuable consideration, and without notice, is good against the first sale. (Note a.)</p>

<p>On a promise to pay when certain funds were received — held, that no demand was-necessary previousjto the suit; and proof that the funds were received, was held sufficient to support-an action for money had and received;.</p>

<p>In 1820, a Judge of the Supreme Court had no power to talce recognizance of. bail.</p>

<p>ERROR from St. Louis Circuit Court.-</p>

<p>A note given to A. and B., as executors, etc., of li., will sustain an action brought by them, as such executors. (Note a.)</p>

<p>In an action against an executor or administrator, on a note of the testator or intestate, the hand-writing need not be proved, unless the execution be denied under oath. (Note a.)</p>

<p>ON A WRIT OR ERROR from the judgment of the St. Louis Circuit Court.</p>

<p>ERROR to the Circuit Court of St. Louis.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>under the act of the Territorial Legislature, of 10th October, 1804, the words, “grant, bargain, and sell,” in a deed, cannot be so construed as to amount to a covenant of seizin, by the grantor, in favor of the grantee.</p>

<p>A suit on an administrator’s bond must be in the name of the Governor of the State, and not in the name of the party injured.</p>

<p>Bail can surrender his principal at any time before sci.fa. returned executed.</p>

<p>On certiorari from a Justice of the Peace, the proceedings cannot be set aside except for irregularity.</p>

<p>‘ON WRIT OE ERROR from the judgment of the Circuit Court for the county of Cape Girardeau.</p>

<p>Where, in a criminal case, a motion for a new trial was overruled, and the weight of evidence is decidedly for the defendant, this Court will reverse the judgment, and direct a new trial to be granted. A writ of error lies for a refusal to grant a new-trial.</p>

<p>ON WRIT OF ERROR from the Chariton Circuit Court.</p>

<p>ERROR from the Circuit Court. Covenant for rent; judgment for defendant in the Court helow.</p>

<p>APPEAL from St. Charles Circuit Court, on covenants.</p>

<p>ERROR to the Circuit Court of St. Charles county.</p>

<p>1. In pleading an act of the Legislature, the title thereof need not be set forth.</p> <p>2. Though the title need not be recited, yet, if a party seeking to avail himself of the provisions of an act, refers to it only by its title, the title becomes material, and must be recited correctly, not to the very letter, but so that there be no material departure ; and the misreeital of a matter that need not to have been stated, is not' material.</p> <p>3. The Circuit Court has no power to enter up judgment for costs againsí a prosecutor who is merely security for costs, and liable upon his bond.</p>

<p>On an appeal from a Justice of the Peace, where the appeal was prayed for on the (lay of trial, but not taken, and the bond not entered into within the twenty days required by law, the Circuit Court cannot hear evidence as to the reason why the appeal was not taken in proper time, but must dismiss the appeal.</p> <p>3. Where A. makes his note or due bill to B,, for the payment of a sum of money at a certain time, and the instrument contains the lollow/ing words : “ that being the time the note signed to me on H. Hight is due,it isalso observed, that the aforesaid sum is to be paid out of the amount arising from Hight’s note, signed to me by said B., and I bind myself to collect the money of H. Hight as soon as practicable” — held, that the note is unconditional.</p>

<p>APPEAL from Montgomery Circuit Court.</p>

<p>Olí WRIT OF ERROR from the Montgomery Circuit Court.</p>

<p>1. In an action on a recognizance of bail, an issue found that the principal, before the return of any execution in the case, and while an execution was in the hands of the Sheriff, offered and was going to surrender himself in discharge of his bail, but the plaintiff, in order to charge the bail, fraudulently prevented the principal from thus surrendering himself, is immaterial.</p> <p>2. An action on a bail bond is not local,but may be brought in any county where the bail may reside.</p>

<p>circuit Courts have no power to suspend Attorneys for any definite time; and can order suspensions only where, in the opinion of the Court, the name of the Attor-neyshould be stricken from the roll. (Note a.)</p>

<p>A motion by appellee, to dismisss the appeal, is a waiver of notice of the appeal. (Note a.)</p>

<p>i. Upon petition to sue for freedom, no evidence can be admitted on the part of the claimant.</p> <p>S. An order, made after verdict, “ that the plaintiff have full benefit of the verdict by the jurors found,” is not a legal judgment, and is no bar.</p> <p>3, A master cannot institute suit against his slave.</p>

<p>1. Where there is evidence relevant to the allegations, it is for the j ury to say whether it be sufficient.</p> <p>2. Mistakes of arbitrators, as to the mode of their appointment, will not vitiate the award.</p>

<p>Where a judgment, in an action of assumpsit, is for a greater sum than the damages claimed, it is error. And in such a case the defendant in error may remit the excess in the Supreme Court. (Note a.)</p>

<p>Where a debt exists by simple contract, the taking- of a covenant, bond, or other higher security, extinguishes the debt. (Note a.)</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>Where a lot and brewery thereon were sold and afterwards leased, a matt mill being thereon at the time of sale and lease — held, that the machinery of the. mill cannot he removed by the tenant,although it may be done without injury to the brewery. (See ante 609; new ed. 361.)</p>

<p>ERROR to St. Louis Circuit Court.</p>

<p>ON AN APPEAL from the St. Louis Circuit Court.</p>

<p>Loan Office certificates issued by the State in 1821, are bills of credit wilhin the meaning of the Constitution of the united States; but the loan of them to individuals, under that act, is no violation of the Constitution. Borrowers are liable to pay.</p>

<p>A verdict rendered for a party, “by order of the Court)" is not sufficient to authorize judgment.</p>

<p>ON WRIT OE ERROR from St. Louis Circuit Court.</p>

<p>1. A power of attorney, made to B., “ to act in all my business, as if 1 were personally present, anil to stand good in law, on all my lands,and other business,” does not authorize the sale of land,and the making' of binding covenants, in relation thereto.</p> <p>2. Parol testimony cannot be admitted, to enlarge the powers of a written instrument. (Note a.)</p>

<p>ON AN APPEAL from the Jefferson Circuit Court.</p>

<p>A deed executed by the Bank of St. Louis, having no other seal than a plaster oí? wax, without an impression, is void, and conveys,no title.</p>

<p>3. When a motion is made to dissolve an attachment,, and overruled, no advantage can be taken of the error, after a plea has beén filed.</p> <p>2. Money recovered by judgment and execution, in an attachment ease in the State of Pennsylvania, may be recovered back, in an action for money had and received in this State.</p>

<p>Where a lease was made of certain salt springs, previous to the act which provided that a warrant of distress should issue in default of payment of rent, the Auditor . of Public Accounts cannot have such a remedy against the lessee.</p>

<p>1. A copy of the grant of letters of administration from the record, is good evidence without the letters themselves.</p> <p>2. Where the maker of a note has been prosecuted to insolvency, the record of the suit may be given in evidence against endorsers to prove due diligence.</p>

<p>1. Equity will not relieve when the party had his defence at law, and failed to avail himself of it, and especially when no excuse is shown for such failure. (Note a.)</p> <p>2. The allegation that the parly made the best defence at law in his power, is not sufficient to give equitable jurisdiction.</p> <p>3. A fact disclosed by an answer, not charged in the bill, will give'a Court of Chancery jurisdiction, where that fact could have been proved by a witness.</p>

<p>On a sci. fa. to revive judgment against administrators, with a prayer for execution against the lands, &e., of the intestate, in. the hands of the administrators, is good on demurrer.</p>

<p>Against a note payable “ on demand,” the statute of limitation begins to run from) the date of the note.</p>

<p>Where there is no evidence going to prove a material point in a cause, the Court is bound to instruct the jury to that effect, if called on.</p>

<p>ON PETITION for re-hearing.</p>

<p>In an action on notes, &c., it is a good plea, that they were assigned to a third person before the commencement of the suit. The suit must be brought in the name of the assignee.</p>

<p>ON AN APPEAL in Chancery from St. Louis Court House.</p>

<p>Á slave conveyed to a married woman after a mutual separation, cannot be held in prejudice of the husband’s rights; the separation not being authorized by law.</p>

<p>ERROR to Washington County Court.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>In an action commenced on the loth June, 1826, in the Circuit Court, and a verdict obtained for $6o — held, that the Court has jurisdiction, and may adjudge costs in its discretion.</p>

<p>ON MOTION to dismiss the writ of error.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>The act of 9th December, 1822, to incorporate the city of St. Louis, is not a public act.</p>

<p>ON AN APPEAL in Chancery from St. Louis Circuit Court.</p>

<p>A judgment, in ordinary eases, cannot be rendered against administrators de bonis propriis.</p>

<p>ON PETITION of re-hearing.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>Afier the expiration of eighteen months from the time of granting letters of administiaiion, or letters testamentary, an execution may issue against the real estate of the testator or intestate.</p>

<p>In July, 1801, it seems that lands in the Territory of Missouri did not descend to th«r brothers and sisters of half blood, as well as those of the whole blood.</p>

<p>ON WRIT OE ERROR from the Cape Girardeau Circuit Court,</p>

<p>ERROR to Cape Girardeau Circuit Court.</p>

<p>ON APPEAL in Chancery from Cape Girardeau Circuit Court.</p>

<p>Where a party uses due diligence td procure testimony, and fails, and the Court refuses a continuance, the Court will, for that cause, reverse the judgment, and remand the cause for a new trial. (Note a.)</p>

<p>ERROR from Ste. Genevieve county.</p>

<p>APPEAL from Cape Girardeau Circuit Court, sitting as a Court of Chancery.</p>

<p>In an action on the case, for debauching the plaintiff’s daughter, evidence of the daughter s had character for chastity,-may be given in evidence.</p>

<p>ERROR to the Circuit Court of Wayne county.</p>

<p>In an action on recognizance of bail, the principal cannot be surrendered in dis. charge of bis bail, after the return of the writ in such action; and after judgment, a stay of proceedings, for account of the surrender, is improper,</p>

<p>APPEAL in Chancery.</p>

<p>1. The civil injury is not merged in a felony committed. (Note a.)</p> <p>it. Where A. covenants to pay a specific sum for a slave, or return her on or before a given period, although the slave may die before that period, yet he is liable on his covenant, if it be found that her death was caused by cruel and unusual treatment of A.</p> <p>3. In an action on this covenant, the defendant will not be permitted to read in evidence the record of the trial and acquittal of defendant, for a felonious killing of said slave.</p>

<p>ON ERROR from St. Charles Circuit Courts</p>

<p>An administrator cannot deny the execution of a writing sued on, purporting to havé been executed by hi's intestite, unless it be by plea, supported by affidavit, and the plaintiff is not otherwise bound to prove it. (Note a.)</p>

<p>ON A WRIT OF ERROR from the Washington Circuit Court.</p>

<p>ERROR to St, Louis Circuit Court,</p>

<p>1. One of a venire, in a criminal case, may be discharged on the day of trial.</p> <p>2. It is discretionary with the Court, whether witnesses shall be removed during the trial.</p>

<p>1. A creditor is entitled to interest, on a claim for money paid, from the time it was so paid.</p> <p>2. The Court will not reverse a judgment, on account of a refusal to grant anew . trial, where the motion was made on the wrong ground,'</p>

<p>SCIRE FACIAS from this Court to St. Louis county.</p>

<p>The game of “Loto” is a gambling device ; and if a Loto table is kept, at which the game was played for money, it is an indictable offence.</p>

<p>The children of a negro slave, in Illinois, horn after the ordinance of 1787, abolishing slavery, are entitled, to their freedom.</p>

<p>APPEAL from St. Louis Circuit Court.</p>

<p>ON A WRIT OE ERROR from the Washington Circuit Court.</p>

<p>IN ERROR from St. Louis Circuit Court.</p>

<p>ON WRIT OR ERROR from Cape Girardeau Circuit Court.</p>

<p>In making partition of land, the Court cannot alter the report of the Commissioner», so as to make a different partition, or make the parlies cast lots. If they disapprove the report, they may reject it, and send it back.</p>

<p>APPEAL from the Circuit Court of Cape Girardeau county.</p>

<p>Where a note is endorsed for the accommodation of the maker, the endorser is entitled to notice of its non-payment, as in other cases, otherwise he is not liable.,</p>

<p>ON WRIT OB ERROR from Ste. Genevieve Circuit Court.</p>

<p>1. upon a view of the whole record, if judgment is given for the Tight party, the Court will not reverse it,although errors may have been committed.</p> <p>2. Tenants, in common, cannot join in ejectment.</p>

<p>ON ERROR from the Cape Girardeau Circuit Court.</p>

<p>"An admission by A. that B. had lifted a note for him, is good evidence to prove money laid out and expended, &c.</p>

<p>ON APPEAL from the Cape Girardeau Circuit Court.</p>

<p>A Justice of the Peace has no power to grant a new trial, except in cases of non-suit, or of judgment by default.</p>

<p>¡Letters of administration cannot be granted by a deputy Clerk in his own name. (Note a.)</p>

<p>A suit in Chancery should 'be regularly set for hearing, and heard at the nest term thereafter.</p>

<p>ON AN APPEAL from the Boone Circuit Court.</p>

<p>An action of trespass may Re sustained, for cutting trees, &c., although the statute authorizes damages in an action of debt. (Note a.)</p>

<p>Where a deed for a house and lot was executed by A. to B., as bishop and his successors in the bishopric, and to C. D. E. and F. and their successors, for the purposes of charity — held, that on the See becoming vacant, and on the death of C. and D., the grantor can recover three fifths of the property, in an action of ejectment.</p>

<p>In cases originating before Justices of the Peace, appeals cannot be taken to the Supreme Court, but a writ of error well lies.</p>

<p>Where an issue of fact is submitted to a Court, and the Court finds for the defendant on the ground that the evidence was not sufficient — held, that the judgment is not, for. that cause, erroneous.</p>

<p>A judgment against an administrator is no lien on the lands of the intestate, although the judgment be cle bonis teslaloris.</p>

<p>OPINION of the Court.</p>

<p>A creditor of an estate has not five years, within which to establish a simple contract debt, after the death of the intestate or testator, if the claim was previously due.</p>

<p>ERROR from St. Louis Circuit Court.</p>

<p>1. A certified copy of a confirmation made under the act of Congress of 2d August;, 1813, by the recorder of land titles, but which was not complete until confirmed by act of Congress, is admissible evidence. (Note a.)</p> <p>2. Circuit Courts have no power to reject a report made by Commissioners, malting: partition of lands, and then proceed to malte such partition themselves.</p>

<p>1. A writ of error lies on a judgment of non-suit, where the Court refuses to set aside the non-suit. (Note a.)</p> <p>%. The issuing of an attachment against a witness, is nota ground for a continuance,, unless it is made to appear that the witness cannot he procured until the next term..</p>