Volume 10 — Missouri Reports

Louis Court of Common Pleas. POINTS AND AUTHORITIES: 1. The instruction of the Court taires the whole case from the jury and leaves them nothing to do, but sign the same for their verdict, which they in fact did. 6 Mo. Rep. 64. 2. The instruction of the Court was erroneous, because the guarantee need not express the consideration, but the same may be shown by parol, which was done in this case. 2 Mo. Rep. 103; 8 Mo. Rep. 303. 3.

Louis Criminal Court. I.The special verdict was insufficient to warrant- a judgment of conviction:— 1. Because it found no offence at all as charged in the indictment. It found the defendant guilty of “charging Morton,” &c. The term charging, by no construction admissible in criminal proceedings, can be regarded as the equivalent of “writing and publishing,” which are the words of the indictment. 2. It found no libel on George Morton as charged in the indictment.

Louis Circuit Court. 1. The admission of the testimony objected to by the defendant below, was wrong. It was wholly based upon entries made in books, and bills and memoranda made by others. And no evidence of the character of the documents, and the persons who made them, was produced nor accounted for, — and in one deposition (Faulkner’s) he speaks of marks upon packages without any means of knowledge whatever. See 1 Phil.

Louis Circuit Court. I. The defendants instruction was properly refused. It asked the court to say that there could be no recovery on the second breach, because the judgment in that breach mention had been reversed by a subsequent judgment, &e. 1. The instruction is confused; it speaks of the judgments being reversed or annulled by a subsequent judgment, which is not the fact; for the last judgment in the case did not effect the former, which had previously beeen settled. 2.

Louis Circuit Court. points and authorities. A purchaser of property with notice, at the time of purchase, of another’s equity in, or equitable right thereto, takes it subject to the same equity, and acquires no more right therein than the person had from whom he purchased, (2 Story’s Equity 443, §1201;) Davis vs. McCloy, 2 Mo.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. Upon the operation and effect of the Bankrupt act upon this case, the counsel of appellants assume the following positions as fully warranted by the law and the adjudged cases: 1. The Bankrupt act is an exception, in derogation of our general system of law, and therefore must be construed strictly.

Louis Court of Common Pleas. 1st. That none of the questions made on the trial are properly brought into this Court, as the motion for a new trial is not embraced in the bill of exceptions, and no exception appears to have been taken to the action of the Court on it. Nor does the bill of exceptions profess to set out the whole evidence. That there must be a motion for new trial. See Higgins vs. Breen, and Alexander vs. Schreiber, decided at last term.

Louis Circuit Court. 1st. The case was set on the trial docket for the 21st May, and when it was called on that day there were demurrers undisposed of, so that according to the standing rules of the Court, it was postponed until the next calling of the law docket. No reason is assigned, or appears on the record, for trying- the issues out of the order prescribed by the rules.

Louis Circuit Court. 1. Where there is a deed fraudulent because made to hinder and delay creditors, and subsequent conveyances are made by the fraudulent grantor, and by the fraudulent grantee, the title will, pass by the subsequent deed, which is first in point of time. 3 J. C. R. 371; Anderson vs. Roberts, 1 Day’s Rep. 527, N. S.; Preston vs. Crafeet, 18 Johns. Rep. 515; Anderson vs. Roberts, on appeal, 15 Wend. 588.

Louis Court of Common Pleas. I. The Court erred in refusing to give to the jury the following instructions asked for by defendants : 1.

<p>A. being indebted to B. and others, received goods of B. to be sold under an agreement to account for, and make returns of, the sales. A. failed to state a large sale for cash made by him.</p> <p>Held—</p> <p>That if such failure were with the intent to defraud his creditors, it would sustain an allegation that “ he had fraudulently concealed,” &c., his property.</p>

Louis Court of Common Pleas. 1. That by the common law the plaintiff below was not entitled to recover single damages, because the payment was made upon process provided by law. I Leigh’s Nisi Prius cases, 64, and cases cited. 2.

Louis Circuit Court. 1. An account for goods sold is an entire demand incapable of being split up into several suits: and if suit is brought for part, it bars another for the residue : Nemo vexari debet bis pro eadem causa. Guernsey vs. Carver, 8 Wend. 492. Miller vs. Covert, ■ 1. Wend. 487. Smith vs. Jones, 15 Johns. Eep. 229. Farrington et. al. vs. Payne, 15 Johns. Eep. 432. Willard vs. Sperry, 16. Johns. Eep. 121. Phillips vs. Berich, 16 Johns. Eep. 136.

Louis Court of Common Pleas. I. The instruction given for the plaintiff below was erroneous in the following particulars : — 1. It defines the ordinary care which it requires to be, such as a prudent man exercises about “ his own property,” instead of saying such as a prudent commander of a boat exercises about his keel in towing the same. 2.

Louis Court of Common Pleas. 1. The Court erred in not setting the judgment by default aside, for the defendant not only showed that he had a meritorious defence, as he was advised by counsel and believed, but that in fact and in truth, the note with legal interest had been fully paid, and showed the good cause contemplated by the statute, for he immediately set about procuring the judgment to be set aside as soon as he knew that he was sued. 2.

Louis Court of Common Pleas. 1. The instructions given for the plaintiff below were erroneous as they lay down the proposition, that an act of one party is a good consideration for the -promise of another, although the promise was not made with any reference to such act. This instruction does not require that defendants should have made their promise, in consideration that Newman would go security for O’Farrel. It is a past consideration. Powell on Contracts,. 209 — 10—11. 2.

Louis Circuit Court, (in Chancery.) 1st. That the decree in this case must rest upon the establishment, by the evidence, of the facts charged in the bill as the ground of relief.

Louis Circuit Court. The act of 1835, Revised Code p. 396, purports to establish the rule of presumption as to judgments rendered before it took effect. To say that the common law rule still remained, unaffected by the act, is to leave the part of the act relating to past judgments altogether nugatory.

APPEAL froni 8t. Louis Circuit Court, (in Chancery.) 1. Equity will not relieve against the inattention of parties in a Court of law, as by neglecting a proper defence, orto move for a new trial in proper time. 1 Mad. Chan. 77; Whea. 14; Yes. 28, and 1 Chan. Cas. 43, are referred to. See also Barker vs. Elkins, 1 John. Chan. Rep. 466. 2. No distinction can he made between the negligence of a party, and that of his attorney. Field & Cathcart vs. Matson, 8 Mo. Rep. 687. 3.

Louis Court of Common Pleas. 1. The arrangement set up in the answer having been put in issue, should have been proved by the garnishee.

Louis Court of Common Pleas. 1st. The liability of securities is strictissimi juris, and never to be extended; any change by a creditor, discharges the sureties of his debtor, even though such change be for the benefit of the sureties. 10 J. R. p. 180, Myers vs. Edge; 7 Term Rep. p. 250; 9 Bing. 400; 8 Wend. Rep. 5l6; Ludlow vs. Simond, 2 Caine’s Cases p. 1, 29, and 30. This amendment would discharge bail. Lake vs. Silk, 3 Bing. 297; Manesty vs. Stevens, 9 Bing. 400-4; Hals.

<p>Where a party submits to a non-suit, and makes no motion to set it aside, the Supreme Court will not look into the case.</p>

Louis Circuit Court. I. As to the exclusion of Floyd’s deposition. This deposition was taken on the part of th® plaintiffs. Both parties appeared at the examination, and no objection was made on either side 'to the commission, nor was any objection taken afterwards, till the moment when the deposition was offered on the trial. ' 1st. The action of the parties under the commission, was a waiver of its irregularity. Dawson vs. Tibbs, 4 Yeates’ Rep., 349.

Louis Circuit Court. 1st. That in a sale by sheriff under execution, if property of defendant he levied upon and sold without tho direction or interference of plaintiff, and the plaintiff’s demand is satisfied by the sale, upon a motion afterwards by defendant to sot aside the sheriff’s sale for irregularity, it is not necessary to notify the plaintiff in execution of the motion. 4 Litt.-Rep. 244; 4 Mon.

Louis Circuit Court- POINTS AND AUTHORITIES. 1. The Circuit Court had no authority or jurisdiction in the case, to issue a mandamus. See State Constitution, Art. 5, §3 — 4 Bac. Ab. Tit. Mandamus,'p. 496 — anápp. 514 — 15—16. In Ehgland, the mandamus is a high prerogative writ, pertaining to the King’s Bench. In Missouri, the Constitution gives it, in terms, to the Supreme Court; and neither the Constitution nor any statute gives it to the Circuit Court.

Louis Court of Common Pleas. To reverse the judgment of the St. Louis Court of Common Pleas, the plaintiff in error relies on the following points: 1. That the depositions of Danl. Sprigg, Thos. D. Johnston, and John B. Morris, offered in evidence by the defendant in error, ought to have been excluded by the Court of Common Pleas on the motion of plaintiff in error to that effect.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The Court erred in permitting the plaintiffs below to amend the declaration by the alteration •of the names of some of the plaintiffs, and by the insertion of others; and especially at so late a period as after it had been called for trial. As the suit was originally brought, there were 27 plaintiffs named in the declaration and writ.

Louis Circuit Court. The plaintiff in error contends, and submits to the Court here, that 1. The admissions of White, apart owner of the Leavenworth, were admissible in evidence against the other owners, as well as himself. 2. That the negligence and privity of White, agent of the owners of the Leavenworth, is the negligence and privity of the owners themselves.

<p>APPEAL from St. Louis Court of Common Pleas.</p>

<p>A. died intestate in the State of Illinois, leaving debts in that State, and also in this State;. B„ administered in the State of Illinois, and “as administratrix” insured the real estate of A.,, situate in Illinois, in an office in St. Louis in this State. The property being destroyed by-fire, B. sues for and recovers the amount due on the policy. D. administers in this State- on the estate of A., it being only the amount recovered by B. on the policy.</p> <p>Held:—</p> <p>That D. is not entitled to the amount recovered on the policy, but that the money belongs to B.</p>

Louis Circuit Court. For the plaintiffs in error it is insisted that the principles upon which a person undertaking, without reward, to do an act which he was under no obligation to perform, is held bound by law for damages occasioned by his negligence, as in Coggs vs. Bernard, 2 Lord Raymond 909, applies to the present case.

<p>An action of trespass will not lie against a party for suing out an attachment, although the debt on which the suit was founded, Was not due at the commencement of the suit.</p>

<p>1. J. gave his note to L. for fifty dollars, part of the price of an improvement on the public land. The vender warranted and defended “ said claim from all future claims or preemption rights, and if any future claim should preemption the claim,' to pay the vendor $300.” The claim was supposed to contain 160 acres. Held, that evidence that the claim was divided by the Platte River, and that the land officer refused to permit J. to enter the portion on one side of the river does not shew a failure of consideration.</p> <p>2. If J. have any remedy, it is on the warranty.</p>

1. The Court will permit amendments to show the truth of facts upon all writs of execution-3 Mars. 350, in lieu, see 2 Pirtle’s Digest, p. 224, §114. 2. The fact that the officer is to be benefitted or injured by the amendment, will not control the-discretion. 3.

1. The report of the arbitrators was no lawful award. It should have found for one or the other party, and not found a special state of facts. 2. The arbitrators did not find sufficient facts to warrant a judgment'for plaintiff.. They did not find the note to have been assigned for a valuable consideration. 7 Monroe 605. 3.

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

<p>ERROR to Ray Circuit Court.</p>

<p>In an action on a bond given to dissolve an attachment, a notice of special matter, 'under the plea of non estfactim, alleging “that the appeal had been taken to the Supreme Court and allowed,” is insufficient. It should allege that “the appeal was pending and undetermined.”</p>

1. That the third count of the declaration is substantially good. 1 Chitty’s PI. 244, 356-7. 2. That plaintiff ought to have been permitted to have withdrawn his demurrer to the second plea of defendants, and file a similiter thereto. Rev. Statute Mo. 467, §1; 1 Mo. Rep. 191; 7 Mo. Rep. 320; 4 Mo. Rep. 423. 3. That an award may be given in evidence upon an insimvl computassent. 21 Pick. 249. 4.

<p>Under the act of 1845, for the punishing of gaming, it is indictable to bet money or property on any gambling device.</p>

<p>The case of Reeds vs. Morton, 9 Mo. Hep. 878, affirmed.</p>

Charles Circuit Court. points : 1st. No prosecutor is endorsed on the indictment. 2nd. In an indictment for riot, under the 6th section of the 7th article of the act respecting crimes and punishments, it is necessary to charge in the indictment that the acts done or intended. were done or intended unlawfully.

That the law does notrequirethe plaintiffs to prove by positive evidence the fact that they composed the members of the firm of Woods, Christy & Co., but that the- same may he proved also by circumstantial evidence, and by the admission of the members of the firm, and by general reputation. 2d. That in this case the plaintiffs gave positive and circumstantial evidence, as well as general reputation, of their being the members of the firm of Woods, Christy & Co., and which…

) The appellant will rely upon the following points to reverse the judgment of the Circuit Court: 1st. That the Court permitted the complainant to give to the Court, incompetent and irrelevant testimony. 2nd. The Court rendered the decree in the cause against law and evidence. The complainant insists for the affirmance of the decree, upon the following points: 1.

Rep. 543. Lovering vs. Fogg, 7th Mon. Rep. Stone vs. Phelps, 635. 3 3. J. Marsh, 354. Edrington vs. Harper, 2 Mars. 596. 3 do. 478, at 1 Pirt. p. 148, §34. 1. The plaintiff saves no exception to the rejection of any evidence offered by him, and without exception saved, can have no benefit in this Court. 7 Mo. R. 419. 8th ibid. 136, 224. 2.

<p>A testator devised property to certain legatees, with a condition that if “either of such legatees should die before coming of age, or marriage, the portion of such legatee should be equally divided among the others.”</p> <p>Held:—</p> <p>'That such limitation only extends to that contingency which may first happen; and where one married, and then died before coming of age, the limitation as to that estate would not apply.</p>

) POINTS AND AUTHORITIES. 1st. The facts stated in the complainant’s bill, in relation to the $500, in the hands of Kring &■ Johnson, are not such as will sustain an interpleading bill in relation to that money — and so far the bill ought to have been dismissed. Story’s Eq.

1st. The plea is double, multifarious; is part for usury; part in payment. 2nd. There was no evidence to prove the plea of usury. The judgment was irregular and should be set aside :— I. Because it was entered without a trial and finding of either issue between the parties, fox* defendants. II. If there was no issue made upon the plea of usury, and no trial of it, then the judgment was given upon demurrer without default taken. III.

It is insisted that the Court erred in excluding the evidence offered by plaintiff. The action, being for money had and received, not only was the copy admissible to show the contract, hut the evidence of Mrs. Bywaters was clearly admissible to show the rescission of the contract. The receipts were unquestionably evidence, as was the evidence offered to show the cancellation of the contract, and that defendant had not complied with his part of the contract.

1. That the Court erred in overruling the motion to strike out a part of the notice to set off. 2. That the Court did not err in permitting the note to be read in evidence. 3. That the Court erred in admitting the evidence introduced by the defendant. 4. That the Court erred in not excluding the said evidence after it had been given. 5.

To reverse the judgment below, it is contended:— 1st. That the hill is multifarious in making G. Paulding a party — he has no has no interest in the proceeding. Berry vs. Robinson, 9 Mo. R. 276. 2d. Grimsley is no party to the ejectment suit, and could not enjoin it. Moses vs. Lewis,4 Con. Eng. Ch. 236. 3d. The only right, if any, of Paulding to the land, was a pre-emption-which could not he sold. Pre-emption Law 1838-’40. 4th.

1st. The demurrers should have been'sustained; because, the breaches were too general.— It does not appear from any of the breaches that an issue upon the affidavit had been made and tried; although, the damages, if any, would grow mainly out of the trial of that issue; and in fact, the attachment bond does not cover any damages that might arise out of any proceeding in the suit, such as the trial of the issue referred to.

1st. The proof given, consisting exclusively of the deed of November, 1818, and the partition deed of September, 1821, did not maintain the issue on the part of the plaintiff, and therefore the instruction asked was properly given. 2d. The chain of title offered in evidence by the plaintiff, consisting of the five deeds, was properly excluded on the ground that two of the deeds, embraced in the chain, had been executed under powers of attorney, which were neither produced…

1st. That in pleading the defendant has admitted possession of the premises, in which dower is. claimed, at the commencement of the action, and admits the holding under title stated in the petition — the law will presume where title is stated and possession had, that they are united. 2d. The defendant, holding derivative title, is presumed in possession of the evidence of such title, and where title is in contest is bound to produce them.

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

The only question presented- is as to the sufficiency of the indictment. The indictment does not charge that any person is the owner of the slave, and there is no 3stch thing as a person being in slavery without an owner or a master. See 1 Chitty’s Criminal Law, 213 — 214. See 3 do. 1087, forms of indictments for killing, wounding or poisoning stock, &c. The record shows a motion to quash was overruled.

1st. The County Court has jurisdiction. See Revised Statutes, page 92. 2nd. The cause of action survives against the administrator under opr statute. See Statute, yage 76. 3rd. The cause of action exhibited is sufficient.

That the Circuit Court erred in refusing to grant the rule upon the Justice, upon the appliea* tfon of Thomas; — the affidavit showed the Justice had not made a correct return, and the only way to correct it was by rule. The errors in the record of the Justice are set out in the motion, and sworn to by the appellant. It is also contended that the Court ought to have permitted tba appellant to file a new bond and affidavit after the Court refused the rule upon the Justice.

) That the only evidence relied on to shew fraud, being the evidence as to the insufficiency of the ■consideration — that evidence was not such as to shew fraud. The defendant, Hamilton, had' nothing until Wells advanced the money and purchased the land. He then had but eighty acres, for which he might be well content to take the improvement bought by Wells. There is no evidence to contradict the answer, which states that this was in good faith, and not to defraud any person.

1st. Whatever is received as money in payment of a money demand, may be recovered as such against the party receiving it, in an action for money had and received. Emerson vs. Baylies, 19 Pick. Rep. 57. Payson vs. Whitcomb, 15 Pick. Rep. 215. Randall vs. Rich, 11 Mass. Rep. 497. Miller vs. Miller, 7 Pick. Rep. 135. ’ Tinslar vs. May, 8 Wend. Rep. 561. Beardsley vs. Root, 11 John, Rep. 467. Ward vs. Evans, 2 Lord Raymond, 928. 2nd.

1st. That the legal right to the land in dispute, being located in virtue of the act of Congress of the 17th February, 1815,. is vested in the person who was the legal owner of the land, in lieu of which the location was made, at the time of the grant of the certificate of new location— and that in this case, Coxe, the confirmee of the land, was not the owner thereof, at that time, having previously sold the same to Edward Robertson, senior, who had sold the same to other…

) 1st. That the slave did not come to Smith in right of the wife. On the death of her father, Smith acquired a right to her distributive share of the personal estate, (slaves being such by the laws of Virginia,) which authorized him to sell, assign, or dispose of it as he pleased. — . Wallace vs. Taliafero, 2 Call. Rep. 447, 491. At the sale, Smith purchased the slave Sophia.

1st. To entitle the plaintiffs, as against the defendants, to recover the land in controversy, in the present action, it was sufficient for them to prove either a legal or an equitable title thereto.

1st. This being- an action for money had and received, to the plaintiff’s üse, the only question involved was, whether the defendant had received money belonging to, or for the use of the plaintiff, and whether he had, or not, was a question for the jury and not for the Court. 7th J. R. 132.

1st. The pleas contain a good defence to the action, and the demurrer wa's therefore improperly sustained. The consideration of a note may be always enquired into in a suit on the note between the original parties. Hills vs. Bannister, 8 Cowen, 31. Pearson vs. Pearson, 7 J. E. 26, Schoonmaker vs. Eoosa, 17 J. E. 303. Eann vs, Hughes, 7 Term E. 350, note. Slade vs. Halsted, 7 Cowen, 322. See also E. S., 1845, title “ Practice,” 832, sections 19,20, 21. 2nd.

The only question in this case is, whether the statute authorising suit to be instituted in ordinary cases against either or all the obligors of a note, also authorizes suit to be commenced by attachment against a non -resident, when there is a co-obligor resident, good for the amount of the note. The appellants think not.

1st. That prima facie there is nothing due him in the face of said covenant or lease froip 'defendant, hut the .$30, for rent agreed to he paid. 2nd. The Court assumed, without proof, that the plaintiff sues for a breach of each and every covenant in the article sued on, and that the amount of damages claimed by him exceeds $90. 3rd. The record shows no other amount claimed than the $30 mentioned in the lease, and that determines the jurisdiction of the Justice of the Peace.

1st. The affidavit is defective. It does not swear as to the proper point of time. It does not identify the debt. It does not say, it is justly owing. 2nd. The defendant’s pleas are good, because the affidavit is bad ; it relates to the existence of the facts necessary to furnish good reason. 3rd. The defendant ought to have had leave to amend his plea. 4th. The Court ought to have decided the motion to strike out counts. 5th.

1st. The action of replevin is a proceeding in rem, 'and cannot be maintained unless the defendant be in possession of the property sought to be replevied at the commencement of the suit. 1 Chit. Head. 185, §2, title «Replevin.” Rev. Stat. title «Replevin.” Doe, ex’r Ray, vs. Huntingdon, 6 East. Reps. 286. Sharp vs. Whittenhall, 3 Hill’s Rep.' 576. 2nd.

1st That the recognizance for the appeal being a record — the plea of non est jactwn, was a nullity. 2nd. Its alteration by the Justice did not affect it. 3rd. The Justice had jurisdiction.

1st. The indictment should negative the idea of a written permission from the master, owner, or -overseer of the slave. Rev. C. 1845, p. 1018 §33^ 8 Mo. Rep. 210. 2d. The indictment is bad, because the time “one thousand, eighteen hundred and forty-six,” is impossible. See Chitty’s Crim. Law p. 225.

1st. The judgment with the endorsements thereon, read in evidence, were variant from those set out in the plaintiff’s account filed with the Justice, and therefore ought not to have been read.

To reverse the decision in this case the appellant relies on the following authorities: Lewis vs. Lewis, 5 Mo. Rep. 278; Rev. Codep. 426 §1. 1st. A charge of infidelity, made by the husband, is not “an indignity to the person” of thewife within the meaning of our statute, upon the subject of divorce.

1st. That Winston having failed to prosecute his suit with effect and without delay, the Court' or jury ought to have assessed the value of the property taken, and damages for the use of the same. Rev. Stat. Mo. 922, §8. 2nd. That the judgment in this case ought to have been against Winston and his securities, that he return the property taken or pay the value assessed at the election of Smith, &c. ■ Rev. Statute Mo. 922, §9. 3rd.

Trover is an action ex delicto — the wrong consists in thecomuemou of the plaintiff’s goods, and ..no plea is good that does not controvert this allegation. No plea is good in an action of tort which is good in an action ex contractu. The plea of payment of the note does not answer the charge of the conversion of the note. The plea of fraud, in the consideration of the note, does not answer ttie charge of the conversion of the note.

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

1st. That the receipt of Myers was improperly rejected as evidence to the jury in support of the declaration. 2nd. Also, that the Circuit Court in assuming that the assignment on the back of the receipt was executed by Levi Rittenhouse, and the same delivered to Samuel Rittenhouse in pursuance ©I said assignment, took from the jury the province of deciding controverted facts — even if that question could have been a controverted point in the cause f — but, 3rd.

APPEAL front Holt Circuit Court. . That the Court erred in permitting the evidence of the appellee to be given, and also in-giving judgment without proof of the submission. In an action on an award, it is necessary to prove the authority delegated by the parties to the arbitrators; if the authority be by deed, it must be produced, and the execution by all the parties to the reference proved. 2 Starkie Ev. 137; Doe V3. Bossier, 3 East.

1st.. That in the construction of a will, the intention of the testator shall be strictly adhered to, that all other considerations shall yield to this when practicable, and that every substantial and material word therein used shall be construed to have some meaning. See Minot’s Digest, page 737-1. 4th Mass. 214 and 6. 1st Met. 446. 2nd.

<p>ERROR to Pike Circuit Court.</p>

APPEAL, from Monroe Circuit Court, (In Chancery.) The errors assigned and insisted on for a reversal of the decree, are — 1st. The admission by the Court to the jury of incompetent and improper evidence given by complainants and objected to by defendant. 2nd. That the Circuit Court gave for complainants improper instructions, objected to by defendant. . 3rd.

1st. The Court erred in striking out the plea of Nil debit, filed by the said appellants to the-declaration, because the suit was brought upon a Sheriff’s bond — which was only the inducement ■ to the action, and therefore Nil debit was a good plea, and should not have been stricken out by the Court. See 1st Chitty’s Pleadings, 518. See also 11 Johnson’s Rep. 414. See Revised Code of 1835, on penal bonds. 2nd.

1st. The Court in Virginia had no jurisdiction of the person of the defendant, and could not have had, without the actual service of the original process upon the defendant by the Sheriff according to the command of the capias. It is the service of the process upon the defendant which could alone give the Court jurisdiction, unless the defendant had appeared to the action. See 2d Cowen, 477, and note to the case. 2 Mass. R. 195. Graham’s Practice, 121 — 2. 2nd.

1st. That the declaration does not disclose any cause of action against the securities in the collector’s bond, and the motion in arrest of judgment should have been sustained.

1st. That the Court permitted illegal testimony to go to the Court, sitting as a jury. 2d. That the Court erred in not granting a new trial.

The plaintiffs in error contend and insist that the Circuit Court, on the trial, committed error, 1st. In permitting the recognizances to he read in evidence on abcount of variance between them, and those set out in the declaration; the latter, as described in the declaration, having no blanks therein — and this objection was well taken under the issue made by the seventh plea. 2d. Under the first instruction given by the Court for defendants below, plaintiffs in error, the…

<p>1. The failure to enter judgment in the Circuit Court, against the sureties in a recognizance, for an appeal from a justice of the peace, is no bar to a suit on the recognizance.</p> <p>2. In a suit on such recognizance, no assessment of damages is required, but the judgment is for the penalty — and in some cases for interest thereon.</p> <p>3. In a sci. fa. on such recognizance, if no plea be filed, judgment will be rendered at the first term.</p> <p>4. The judgment can not exceed the penalty of the recognizance, and interest thereon.</p>

lit. That the Court erred in rejecting each, all and every of the proofs which plaintiff proposed to give to the jury upon the trial of the cause. 2nd. That the Court erred in refusing to set aside the non suit, and to grant the plaintiff a new trial upon his motion therefor.

1st. The alteration of the instrument sued on, by the plaintiff below, without the consent of the defendant below, renders it null and void. Bla. Com. 2 vol. 308. 2d. The proof of such alteration, offered by the defendant and rejected by the Court, ought to have been received under the issue made by the plea of non est factum. Starkie Ev. 2 vol. 480* Chitty PI. 1 vol. 519. 3d. Such evidence is admissible, notwithstanding the plea is not verified by affidavit. Mo.

There being no hill of exceptions in this case, the defendant in error insists that this Court will nor review the case, and depends upon the decisions, 7 M. R. 50, 285. But the law, as laid down ¡a cnese cases, can only apply when the record does not present full)' the points decided by tfuLourt below.

1st. That the sheriff is not entitled, by law, to a commission upon the debt and interest mentioned in the execution, because he did not receive or collect the same, nor pay over the same to the plaintiff; but, on the contrary, the same was received, by the plaintiff himself, and the same was paid over to the plaintiff. 2d. That the commission allowed by our statute, is the compensation to which the sheriff is entitled for collecting, or receiving and paying money upon…

1st. Drury and Wiseman as Post Masters are only bound for ordinary care and diligence, and rare not bound for tile same degree df care that is required of common carriers. They as Post 'Masters are not insurers of property as common carriers are. .Story on Bailment, sections 461— 2 — 3. 2nd.

1st. It was erroneous in the Circuit Court to order an enquiry of damages, without first entering a judgment by default against the garnishee, and such a judgment, nunc pro time, after the assessment, was irregular and void. Rev. S. 476,140,814-15; 17 Johns.

Galloway’s motion was properly overruled by the County Court for reasons — 1st. The opposite party, Overheck & Shaw, had no notice of it. See Caldwell vs. Lockridge, 9th vol. Mo. Reps. p. 362. 2nd. Even if notice had been given, the County Court ought to have overruled said motion, because Galloway for himself and the other objectors as is shown by the record, was in Court when the new route was established, and took no exception.

1st. By the common law the personal estate of all intestates vested in the administrator without any charge of distribution, which remained until the enactment of the statute of 22 and 23 of Car. 2nd, after that statute all estates were charged with distribution except estates acquired by the husband as administrator of his wife, which were expressly exempted.

That the judgment of the Circuit Court must be reversed: 1st. Because the interrogatories are addressed to Mahala J. R. Hyde, as administratrix of Edmund Hyde, deceased, and not in her individual character; no question, therefore, based upon her private indebtedness, would have been proper under the issue, yet the Circuit Court decided that her individual indebtedness was the proper subject of investigation. 2d. Because the Circuit Court erred in assuming that an…

1st. The Circuit Court erred in refusing to permit said McCurdy to prove, on the trial, that said steer in controversy had been killed by reason of his mischievous habits in Speed’s field — because a previous agreement and promise to keep said steer out of Speed’s field had been proven to have been made by McFarland to McCurdy, at the time of said sale — and, therefore, any violation cf said agreement and undertaking of McFarland, was a good defence to the recovery of the…

The only question seems tobo Whether abond, signed by a firm in the partnership name, be a bond or not. The law governing the case will be found in 1st Mo. R. p. 139, and in Collier on Partnership 258-9; these authorities will, it is presumed, show the bond in this case to be good, at least against him who executed, and it was approved as good by the clerk. If the bond was not good, yet the suit should not nave been dismissed, but time should have been given to amend it.

1st. The warrant of attorney was good to authorize the judgment confessed. See 5 Mass. Rep. 358. In this case the party, by a memorandum at the bottom of the note, acknowledged himself “surety” — was held to be original promissor — also shows an instrument commencing “I promise,” but signed by two persons — binds both. 1 Bibb R. 262; see 4 Littell 390. A judgment, literally against one defendant, construed to be valid against both defendants. See 7 N. Hamp.

The plaintiff demurred to defendant’s pleas; the Court overruled the demurrer and gave judgment against the plaintiff and the only question raised on said demurrer is as to the sufficiency of the declaration, as the defendants did not, and I presume will not insist on the sufficiency of either ■of their said pleas.

<p>ERROR to Buchanan Circuit Court.</p> <p>1st. The Court gave erroneous instructions to the jury. R. S. 545, §27. 2d. The verdict of the jury is contrary to the evidence.</p>

1st. The indictment need not allege where the game was played.

That it is not necessary to set out all the names of tile defendant; it is sufficient to set-out one vf the Christian names. The plea admits that the name set out is the true name, but is not all the name. This is unnecessary, and the plea was bad.

The appellee contends that the judgment of the Court should be affirmed. 1. Because according to the provisions of the 5th section of the act regdlating petition in debt, R, C. 1845, page 802, the.Court has no discretion, and cannot extend the time for pleading. It is a positive Legislative enactment, and there is no section in the act explanatory thereof or which gives discretionary power to the Court, 2.

<p>ERROR to Callaway Circuit Court.</p>

That the Court erred in sustaining the demurrer — the plea of set off being an equitable defence, and the party to the suit beneficially interested, being indebted to the defendant, thd defence may be made. 13 Johns. Rep. 9; 8 ib. 152; 3 Johns. Cas. 425, 263; 1 do. 51; 8 Pick. 342; 5 ib. 167; 16 Mass. Rép. 473.

1st. That the bill should be dismissed for these reasons : First — The prayers are multifarious and inconsistent, and cannot be united in the same bill. 9 Mo. R. 293. Second — The complainants ask a performance, and do not proifer or tender payment of the purchese money due for the lot. 2nd. That the vendor, Leiper, had a lien upon the estate sold to Nolly for the purchase money unpaid. See 2 Sugden on Vendors, 62.

<p>A note given by a surviving partner to the administrator of a deceased partner, who had administered upon the effects of the partnership, is valid, even though such settlement may not have been in accordance with the law concerning such administrators.</p>

<p>A count charging a factor “with not selling for the best pries” is not sustained by evidence of. a delay in selling, the price obtained being the best to be had at the time of sale. The' delay in selling should be alleged as the ground of recovery.</p>

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

1st. That the Circuit Court erred in rejecting the testimony of William Stephens and Joseph .Renfro. They are not parties to this suit, and although they will be entitled to further distribution of Absalom Renfro’s estate at the death of their mother, from their present attitude they can neither be gainers nor losers in the event of this suit, and have no interest direct and immediate therein.

That the evidence establishes unequivocally the fact that he was prevented from appealing to the Circuit Court by the act and agreement of defendant. The verdict of the jury shows that the judgment.against him on said note is iniquitous and unjust.

Louis Circuit Court. Statement of the Case adopted by the Court; This was an ejectment in the St. Louis Circuit Court by Labaddie against Evans & Riehl for a lot of ground in the city of St. Louis, brought on the 19th October, 1841. It was tried ^th Eeffiy, 1844, and a judgment rendered for plaintiff below.

Louis Court of Common Pleas. 1. Erom the transcript,fit appears that the second writ of ca. sa., if it even came into DuBreuil’* hands, should have been returned on the 16th August, 1841, from which time, up to the 11th March, 1846, when the verdict was rendered in the court below, the plaintiff can only recover the damages of one hundred per cent. This is a period of about 4 years and ^ months.

Louis Criminal Court. 1. The charge of the City Attorney is sufficient to enable the defendant to understand distinctly what he was called upon to defend. 2. He is charged with violating the provisions of a certain ordinance, the title oí which is given, and the day stated upon which it was approved.

1. The indictment is in proper form. In the case of the State vs. Harrison, 9 Mo. B., 530, an indictment in this form was held good. 2. Two or more may be jointly indicted for keeping a ferry. Any number of persons may be jointly indicted for any offence which may he committed by several jointly. 3. It ia not necessary to allege that they were partners — they may not have been partners — indeed, there are no “ partners” in crime.

Louis Circuit Court. The instruction of the court was correct, for the evidence given oh the trial on the part of the plaintiff neither showed the possession of the horse at the time the writ of replevin was executed, in the defendant, nor within one year next previous, the latter of which is necessary under our statute. See R. S. page 921, sec. 3; and the former under well settled principles of the common law. Saunders on Plead, and Ev., 766- Camp.,476.

Louis Circuit Court. 1. The question submitted to the court below was strictly within it's jurisdiction, and the decision one from which an appeal lies to this Court. Wise vs. Darby, 9th vol. Mo. Rep. page 131. 2. The only question in this case is, the construction of the second division of the tenth section of the statute entitled Set-Offj Rev. Code, 1845, p. 1006. • When was the money due on the second execution ? 3.

<p>The lien of a transcript of a judgment of a Justice of the -Peace, filed with the Clerk of the Circuit Court, attaches from the filing of the transcript.</p>

Louis Court of Common Pleas. 1. The bill is bad, because it does not thereby appear that the judgment was not a lien upon the property levied upon and advertised to be sold. Liens upon real property acquired before petition filed, were not impaired by the late Bankrupt Act. See proviso at the close of the 2nd section thereof. , ' 2. The bill does not show jurisdiction in the District Court for the District of Columbia over Reed’s case therein.

Louis Court of Common Pleas. 1. The court erred in allowing to be read in evidence the demand in the case of Mann Butler, sen’r, First, Because it was not res adjudicata; Second, Because it was between different parties; Third, Because there was no evidence that the credit allowed on the demand in the other suit was a part of the set-off claimed in this suit, nor that the claim in the other suit was such as the set-off in this suit was applicable to.

Louis Court of Common Pleas. 1. The husband, Lewis J. Wilson, is liable for the debts of his wife, which existed before marriage. A husband’s liability for the debts of his wife is an incident to the principal contract, and as such, he cannot avoid answering for the debts of the wife. 2. Was the wife, before and at the time of the marriage, liable for the debt? We think she was.

Louis Circuit Court. The only point to be considered is, whether the court below erred or not in refusing to grant the continuance asked for by Watson, at the return term of the writ. We think that the refusal to grant the continuance was erroneous. 1. The defendant was not entitled, as to a mere legal right, to a continuance. No statute gives him that right.

<p>ERROR to St. Eouis Circuit Court,</p>

Louis Circuit Court. 1. That the judgment on which the suit against Holliday was brought, merged the offence for which he was originally indicted, and debt lies on the judgment against Holliday, ex contractu.— United States vs. Dodge, 14 Johnson, 95; Act of Congress 24th September, 1789, ch. 20, § 11; Addison’s Reports, IT. S. vs. Wolf, 312; Houston vs. Moore, 5 Wheat.; 1st Chitty’s Pleadings, 126,127, 403, 404.

Louis Circuit Court. 1. That admitting the words of the statute to have the force of a general covenant of seisin by indefeasible title, the existence of an outstanding incumbrance is no breach before foreclosure or payment. 16 Johns., 254; 7 Johns., 380, 381; 5 Pickering, 217; 7 Johns., 471; 11 Johns., 538; Doug., 610; 2 Burr, 979. 2. Oyer being given, it was manifest that the deed contained an express covenant to warrant and defend.

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

Louis Court of Common Pleas. 1. The demurrers to the pleas in the court below, were all wrong, and ought, every one of them, to have been overruled. 2. The receipted account current between Collier and Gamble was improper and irrelevant testimony, and ought to have been rejected. 11 3. The exclusion from the jury of the assignment of the covenants sued on, by Gamble to Mrs. Lawless’s trustee, was erroneous. 4.

Louis Circuit Court. Statement of the Case adopted by the Court: This was an action of covenant on a deed poll, bearing date 1st June, 1839, whereby it is witnessed that the defendant and wife, for a money consideration expressed, grant, bargain and sell to the plaintiff a lot in the city of St. Louis, particularly described, on which lot of ground there is a mortgage executed by the grantors to Charles S. E. Languemare, dated 17th August, 1837, recorded in the Recorder’s…

Louis Circuit Court. 1. The Circuit Court was not authorized to charge the jury orally, without consent of parties —the act of 1838 not being repealed. See acts 1838-9, page 27; Rev. Co. 1845, p. 362, sec. 19-20. 2.

Louis Court of Common Pleas. 1. A note given by way of settlement, and to avoid the trouble, expense and risk of litigation, where the law is doubtful, and there is a difference of opinion, will not be held invalid for want of consideration. Longhridge vs. Dorrille, 5 B. & A., 117; 1 Leigh’s Nisi Prius, 30; Brown vs. Sloan, 6 Watts, 421. 2. Damage, trouble, inconvenience or prejudice to the promisee, constitutes a good consideration, as benefit to the promisor. 2 Pet.

Louis Circuit Court* 1. That all the proceedings in said cause, down to final judgment for the plaintiff, were regular. 2. The plaintiffs, secondly, insist, that no sufficient cause was shown by the defendant for setting aside the assessment of damages, 3. The plaintiffs maintain that the judgment by default was improperly set aside. 1.

Louis Criminal Court. The indictment is defective, for the reason that it sets out the capacity of the defendant, but does not allege that the act of selling was committed in that capacity. It is contended that it is necessary to set out the capacity of the defendant for the purpose of giving the court jurisdiction, which it does not have if the liquors were sold by the defendant as a tavern keeper.

<p>1. Unless a bill of exceptions shews the evidence, the instructions of the circuit court based upon the evidence, will be presumed to be correct.</p> <p>2. If one part owner of a steam boat invite a person to take an excursion upon the boat, he and not the person invited, will be liable to the other owners.</p>

Louis Criminal Court. It is contended on the part of the appellant, that the judgment of the St. Louis Criminal court in this case ought to be reversed, and the prisoner discharged upon the points following: 1st. The State did not prove the verme as laid in the indictment. 2nd. The defendant was charged with one offence and tried for another. 3rd. The law upon which the indictment is founded is unconstitutional. 1.

Louis Circuit Court. 1. The circumstances show that the design of the defendant was to get the services of the -’ave-for the use of the money; i. e., $6 in services for $3 33 interest, each month. The transaction was made to appear as a sale, to cover and disguise the usury. He who could exact the usury, could dictate the terms, and these were the terms the plaintiff' was forced to accept. His favorite slave was surrendered with this receipt.

<p>APPEAL from St. Louis Criminal Court.'</p>

.Louis Court of Common Pleas. 1. Stevens could not sell or in any way act under a writ directed to and in the hands of Paulding, nor could he make any such agreement to the prejudice of the plaintiffs, as he sets up in his answer. 10 Peter’s Rep., p. 400. His attempt to sell under Paulding’s writ as alleged was abortive, and the boat, in fact and law, was never sold on Paulding’s writ. 1st Halsted’s Rep., 228.

' Louis Court of Common Pleas. 1. The plaintiff in error has adopted the proper remedy, if the court below erred in its judgment in granting a new trial, by abandoning his case. Davis vs. Davis, 8 Mo. R., 56. 2. That the court below did err is apparent from the record, for the appeal appears to have been taken on the same day the trial and judgment was had before the Justice. Rev. Code 1845, p. 670, §. 21; Rev. Code” 1845, p. 316, §. 9. 3.

Louis Circuit Court. 1. The bill of exceptions in this case, does not on its face purport to contain aU the evidence in the cause. But unless the hill of exceptions gives all the evidence in the cause, this Court upon the authority of its own decisions “will not interfere with the decision of the Circuit Court and order a new trial” — Vaughan vs. Montgomery, 5 Mo., 529; Hughes vs. Ellison, 5 Mo., 110. 2.

<p>ERROR to St. Louis Court of Common Pleas.</p>

Louis Common Pleas. 1. The court below erred in overruling defendants’ motion to exclude the deposition of A. P. McCready. Nightingal vs. Duisme. 5 J. Bur., 2594; Perkins, adm’r. vs. Dunlap, 5 GreenleaUs K., 268; 1 Chit. PI., 384, and notes x and y; 1 East, 1; 2 W. Blk. Rep., 684. 2. The court below ought to have given the first instruction prayed by defendants’ counsel, and committed error in refusing it.

Louis Court of Common Pleas. 1st. The evidence is not sufficient to support the appellee’s claim, either as to duration of services, value of his services, or the amount as ascertained by the verdict. 2nd. The sale of the boat under law process to Jonas Newman, (defending owner,) conveyed to him a clear unembarrassed title discharged of all liens, or at all events of all liens of equal and inferior class or grade. 3rd. Smith’s lien, if he had any, was discharged. 4th.

Louis Common Pleas. That the judgment below should be reversed, because the verdict and judgment were against law and the evidence; Because R. M. Strother was not permitted to testify; Because the instructions prayed by barge’s counsel were refused; and, finally, Because a new trial was not granted. 1.

Louis Court of Common Pleas. That the verdict and judgment were against the evidence. 1. There was no sufficient affidavit for obtaining a new trial on the ground of newly discovered evidence. No sufficient diligence was shown. 6 Mo. Rep., 600; Graham on New Trials. Furthermore, this point cannot arise, as the affidavit was not incorporated in the bill of exceptions. 2.

Louis Circuit Court. 1st. This is an effort to hold the boat responsible under our statute for money loaned to purchase a boat The boat was not on any trip or voyage; she was not under weigh; she was not proposing ■to start on any voyage; she was empty at the wharf. But more than this, the boat was in custodia legis, actually in an officer’s hands at the time this money was loaned.

Louis Circuit Court. 1. That a stranger to the consideration can maintain no action, and if this be good law, the court erred in refusing the defendant’s instructions. See Price vs. Easton, 4 Barn. & Aid., 433; affirming the case of Crow vs. Rogers, 1 Strange, 592; Bent vs. Brainerd, 1 Mo. R., 285; Thornton vs. Smith, et at., 7 Mo. R., 89; Chauvin vs. Labarge, 1 Mo., 556; Wain vs. Walters, 5 East. R., 10; 2 Smith’s L. C., 147; Law Library, 21, 107.

Louis Circuit Court. 1. The judgment is erroneous, because a material issne joined between the parties was not found by the jury. See Fenwick vs. Logan, 1 Mo. R., 401; Easton vs. Collier, 1 do., 421; Jones & ■Jones vs. Snedeeor, 3 do., 390; Foster & Foster vs. Nowlin, 4 do., 18; Pratt vs. Rodgers, 5 do., 31. 2.

Louis Court of Common Pleas. 1. The language of the statute is explicit that the assignor is not liable by reason of the insolvency of the maker, unless he he so insolvent that a suit against him would be unavailing. E. C. of >25. And surely a suit would not be unavailing, if a half, or a fourth, or a tenth part of the debt could be recovered.- The Common Pleas Court thinks it would, be unavailing unless the maker had property enough to pay all Ms debts.

ERROR, to St. Louis Court of Common Pleas. 1st The note being a common note, not negotiable, payable at no particular day, but on demand, ao action could arise upon it, until demand made. 2nd. As between the makers and the payee, the credit may be indefinite, without impairing the obligation to pay; and the contract of the assignor is only accessory to, and consequential upon the note, and must follow its nature, and share its fate. 3rd.

Louis Circuit Court. 1. That it was erroneous and irregular in the Circuit Court to cause the issues of fact to be tried before the determination of the issues of law, and in fact, without making, up to this time, any disposition of the issues of law. Rev. Code of 1845, title Practice, page 816, sec. 1; Menefee vs. D’Lashmut, et al., 1 Mo. R., 258. 2.

Louis- Circuit Court. 1. The pleas retained by defendant, and to which the plaintiff below demurred, particularly tb&‘ 5th and 8th, were good, and consequently the demurrer thereto ought to have been overruled.— Acts of General Assembly, sess. of 1836-7, p. 215 and 189; sections 5 and 10 of the charter, Acts-of 1842-3, p. 20, sec. 4. 2. The appellee’s declaration is had; it no where expressly avers that Homans accepted the office and appointment of agent of the appellee.

Louis Circuit Court. 1st. The court erred, in refusing to permit the defendants below to prove, what was the custom, •of trade and-general usage, in cases of hiring slaves to steamboats. 2 Greenleaf on Evidence, § 251, and cases there cited. 2nd.

Louis Circuit Court. It is an an inflexible rule, to which there is no exception, that in an action of ejectment it devolves upon the claimant to show a good and sufficient legal title to the premises soughtto be recovered. If there be any weakness or defect in the claim of the defendant, the plaintiff will not he assisted by it. Adams on Ejectment, p. 28, 285; 9 John. Rep., p. 55; 4 John., 483; 2 Overton, 185, 334;; 3 Watts, 95, 151; 1 Marsh, 251; 6th Binney, 434; 3 Litt.

Louis Court of Common Pleas. 1. That Davis '& Cinnamond, Greenlee & Logan, were part owners and tenants in common oí the steamboat Lighter, and not partners. Colye'r on Partnership, 666, 682, 688. 2. The plaintiff having paid, of his own money, debts incurred in the construction of the boat, which, under the terms of their original agreement, were to have been paid by the defendant, (who was also a part owner) may maintain assumpsit to recover it back.

Louis Court of Common Pleas-. That the verdict was against law and the evidence; that the instructiohs asked for, on the pari of the boat were improperly refused; and that a new trial should have been granted. 1st. The court did not err in refusing the instructions asked by defendant They are both based upon the assumption, that a cause of action that accrued beyond the limits of the State of Missouri, is not embraced in our acts giving liens on boats and vessels.

Louis Court of Common Pleas. In this case the only question is, whether a demand against a steamboat, that'accruedentirely in This case is intended to present the question, whetfier or not a creditor residing out of this-State, can arrest a boat here, used in navigating the waters of this State, upon a claim for supplies furnished! or her use, at Louisville, Kentucky, within six months before suit brought.

Louis Circuit Court. The only question involved in the case, is whether the deed cf 30th of May, 1842, was effectual to pass the life estate of John Boschenstein, in the lot in question; if it was so, then nothing remained to pass under the execution sale of the plaintiff below, and the plaintiff was not entitled to recover, Eor the purposes of the present hearing, it will be admitted that the deed was informally executed to pass the estate of the wife.

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

Louis Circuit Court. 1st. The court erred in overruling the demurrer to the replications. 2nd. The evidence of Fontana’s hand writing, was incompetent. 3rd. It was insufficient to entitle the bill of exchange to be read to the jury. 4th. The second instruction to the jury, asked by the defendant, ought to have been given. 5th.

Louis Court of Common Pleas. 1. The tenant removing and giving the key to the landlord, amounts to a surrender, by operation of law. Chitty on Contracts, 2nd Ed., 329; Grimman vs. Legge, 8 Barnwell. & C., 324; Whitehead vs. Clifford, 5th Taun., 518. 2.

Louis Circuit Court. 1. The court below ought to have sustained the motion made by the counsel of appellants, on the close of plaintiffs’ case, to exclude so much of Janney’s deposition as relates to the sale ■of the slave Austin. For, the witness Janney not only proved in his deposition that there was a bill of sale of the slave Austin to appellee, which bill of sale was not produced at the trial, but also that he had himself drawn it. 2.

Louis Court of Common Pleas. 1st. The measure of damages, (if any were recoverable,) was not the full amount oí the installments, as stated in the 2nd instruction given, but the actual profits the plaintiff would have made, had he completed the contract, or the actual damage he sustained in consequence of being thrown ‘out of employment. 7 Greenl. Rep., 51; Miller v§. Mar. Church, 6 Greenl. Rep., 208; Nourse vs. Snow, Chitty on Contracts, 3rd Amer.

Louis Court of Common,-Pleas. 1. The demand of the plaintiffs in error was a lien on the boat by the laws of this State. See Acts of 1839, p. 13; and as such, went with her as part and parcel of her wherever she might go; so that the title set up by the defendant’s pleas was still encumbered with the lien in the hands ol' Alexander, the purchaser. Story’s Conflict of Laws, p. 268, sec. 322, b. 2.

1. The agreement between the attornies only waived any objection to the paper offered, on the ground of its being- secondary evidence. It expressly required full proof of the execution of the deed. The bill in chancery was the only evidence offered of the execution of the deed, or that the paper was a copy. It is insisted that the bill was no evidence. The statement in the bill was not made on the knowledge of the plaintiff, but only upon his information and belief.

Francois Circuit Court.- 1. That the court erred in instructing the jury, that the contract between the parties, created -a power in Relfe by which he as Marshal and in behalf of the United States, had a beneficial interest, and that .Tones had no right to revoke such power, and demand a rqdelivery of the notes, except as stipulated in such arrangement. 2.

1. In an election for clerk, it is the duty of the clerk of the County Court, and not of presiding justice, taking to his assistance two justices of the peace, or of the County Court, to examine,, and cast up the votes, determine who is elected, and grant a certificate of the fact. Rev. Statutes, title Elections, § 21; title Clerks, § 8. 2.

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

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

1. The defendant insists upon a reversal of the judgment of the Circuit Court, First, Because the verdict is contrary to law and evidence, (the note sued on not having been read to tlie jury) without which there is no evidence to support the verdict of the jury. Second. Because the court below erred in giving the 2nd instruction. See 2 McCord’s Rep.. 379; Gow, 242. Third.

That upon the evidence no recovery can be had by Cabell; he being the partner of’plaintifF, in the purchase and sale of lands for a term of five years, when the money was advanced, spoken of by the witness. See 5 Mo. Rep., 112.. That when the case was submitted to the Circuit Court, it ought to have found the issue, either for plaintiff or defendant, before making an order, or judgment, as in case a jury had been empannelled. 1.

APPEAL to St. Genevieve Circuit Court. 1. That the bond executed by Malachi Maddin, in favor oí Maria Field (being a security of a higher nature than the account) merged the account. 2. That the court erred in permitting hearsay testimony, and that being a statement of a slave, to go to the jury. 3.

1. If the demurrer to the defendant’s special plea was sustained, judgment should have been, •rendered for him, as the .declaration does not contain any cause of action. 2. If the demurrer was overruled, the plea stood unanswered, and judgment of non pros should have been entered against the plaintiff; at all events if the court should presume that the demur-, •rer was overruled, it is evident that-it-was improperly overruled, as the declaration -is bad. 1. The plea is bad.

, The first instruction asked by defendant below, should have been given: because there is no evidence, even tending to show a promise by defendant to plaintiff. The second instruction of defendant should also have been given. The evidence showed the jury might find those facts, and from them the law would not raise a promise to pay. The third and fourth instructions of defendant, are in substance the same, and should have been given.

The motion to dismiss the bill was properly overruled. The appellant, Martin, as master of the steamboat, was the confidential agent of the owners.

1. If Butler did not appear, (he not having been summoned,) the suit should have abated as to him at the October term, 1844. It was irregular to proceed in the cause (except to bring him in,) without an abatement as to him. See Stat. on Practice. 2. After an issue, trial and verdict against two defendants, it was irregular and unauthorized, to make an entry to stand for five days earlier, of a verdict and judgment against one. 3.

That the court erred in admitting evidence under the general issue of ml dehit, without notice, to-show a failure of consideration. See Steinback vs. Ellis, 1st Mo., 293; Bev. Code, Article 7, sec. 19 of Practice at Law. That quiet possession of land from the vendor to the vendee, is sufficient consideration at law, to give a recovery of the purchase money. See Brown, et al. vs. Beeves, et al., 7th Martin’s Louisiana Bep., 235; Olt vs. Garland, 7th Mo., 28.

1. The action is brought in favor of two corporations, which, by statute, nor general law, can join in action; this is not obviated by reason of a bond executed to such obligees; the law vests the right in the county, and she should sue; the State has no right under the contract; and when she cannot contract, she cannot sue. 2.

1. A party may maintain an action on a note given to him by a wrong or artificial name. X Monroe, 175; 2 Starkie, N. P. C., 29. 2. When the proper averments are made in a declaration, parol evidence is competent to prove, who was intended by the name in the note. 3. The deed and notes were legal evidence, tending to prove the allegations in the declaration.— The deed-to prove that plaintiffs were trustees — the notes to prove that such notes were given. 4.

1. That by the statute of this State, the bond sued on is assignable, and that the plaintiff, as the assignee thereof, has the same right to sue thereon for the debt therein mentioned, as the assignor had, in his own name. Digest, p. 190, sec. 2. 2.

That the proof was illegal and improper. He sued the defendant for converting the horse to his own use, in going to a place not known to the plaintiff, at the time the horse was let to the defendant; and in attempting to return on the same day, one day sooner than the plaintiff supposed, in letting his horse, he would be able to return, by which his life is lost. This evidence Was no answer to the action, nor the proof offered by the plaintiff.

1. The report of commissioners, upon a remonstrance against vacating a public highway, does not conclude the matter, and impose upon the court the mere ministerial duty of receiving and filing the report.

Charles Circuit Court. 1. The Governor had power to appoint a collector in place of David MeCausland, the outgoing sheriff, who refused to give' bond and act as collector for that year. 2. The actual appointment, as offered in evidence, is in usual form of such appointments, and is not rendered void by. failing to -state in the body of the commission for what year the appointment is made. 3.

1. That the original judgment and execution thereon issued were void, for want of jurisdiction ■of the court to render judgment for the amount of the fine adjudged against defendant. See Rev. Code, 338, sec. 61. 2. That the court had no power or jurisdiction at the succeeding term of the court, to revise its proceedings, &c,, of the preceding term of the court, so as to give validity to them. See 1 Mo. Sep., 17, Hanly vs. Davis; 2 Bibb Rep., 248, Conn vs. Dojfle; 1 Bac.

Court. 1. That Doxey and Compton’s depositions were received in evidence without the proof required by law, of the existence of the cause that authorized their reception. Eev. Stat. ’45, chap. 48, § 20; Eev. Stat. of ’25, Title Depositions, § 4. 2. The damages are excessive. That as Chapman pointed out no particular objection to the reading of the depositions, except a general sweeping one, that this Court will not now hear his objections.

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

1. The bond sued on, is not such a bond as the statute authorizes suit in the name of the State to the use of Robt. Rainey, by his curator, to he brought on. The bond not being a statutory bond, there is a material distinction between the condition of the bond sued on, and that of the statutory bond, to he given by administrators. 2.

1. That Raymond, the master and captain -of the boat, as such, was authorized to employ a '■■clerk, to render services for the owners of the boat whilst engaged in their service in its navigation of our rivers, and to settle with him for such services, as the agent of the owners, so as thereby to hind them, in like manner as if they had employed the clerk in their own proper persons.

A grocer, under our statute, is defined to be a person authorized by law to sell goods, wares and merchandize, (dry goods excepted) and intoxicating liquors, in quantities not less than one quart.

1. The averment in the plea that the land on which the trespass was committed, was the nearest unimproved land to the bridges and causeways to be repaired, is a material averment, and contains two distinct propositions; first, that the land was unimproved; and, second, that it was not nearer to the bridges and causeways than any other unimproved land; and both propositions are equally material. Rev. Stat. of 1845, chap. 151, sec. 49. 2.

1. The object of the last clause of the third section of the dower act, is, that when there is no issue of the last marriage, and the marriage relation is dissolved by the death of the husband, the wife shall occupy, ir she so desire, a more eligible position in regard to the property she brought into the marriage, than whpre there is issue, and the act should he liberally construed to carry out said intent of the Legislature. 2.

1. That at the time the court below set aside the judgment and reinstated the case on the docket;, Hunter wa3 dead, and that no administration had at that time been granted on his estate, and he could not therefore have had notice of the action of the court; and that therefore the court below had no power to set aside the judgment and reinstate the case. 9 Mo. R., 363, Caldwell vs. Lock-ridge. 2.

, 1. There is no equity in the bill. 2. Complainant had an adequate remedy at law. He could have moved to setáside the judgment for irregularity, or he could have had a writ of prohibition. 3. The bill was defective in, not exhibiting the judgment complained of. 4. The answer denied some of the material allegations in the bill, and there was no proof to sustain them. 3.

That the judgment of the Qireuit Court should be reversed, 1. Because the Court of Common Pleas erred in excluding the written lease from the jury, upon !he supposition that the same was assignable at law. See 1st Dana’s Reps., p. 594; 6 Mo. Rep., p. 509. If seems quite clear to us, that the article of agreement between Butler and Wooden, is neither a bond or note within the meaning of the statute. 2Litfell, 167; 3 Bibb, 441; 2 Bibb, 233. 2.

Clair Circuit Court. That the note on which the suit was brought being given for «value received, and payable without defalcation,” was the same in effect as an inland bill of exchange, and as such the holder was ■entitled to four per cent, damages upon protest for non-payment. See Rev. Stat. 1845, p. 173, 174, secs. 8,15,16.

1. The Circuit Court erred in dissolving the injunction, because of the insufficiency of said eon» stable Brown’s return in the service and return of the summons against Moss and Shipton, when issued by Wilson, justice of the peace, as to appellant; the Circuit Court, by its decree, should have perpetuated the injunction, because of its insufficiency of the constable’s return. See the 1st vol. of Mo. Rep., (republicalion) Charless vs. Mamey, 382,383. 2.

That the Circuit Court erred in sustaining the demurrer to the declaration. 1. Because the declaration is substantially good; and if technically defective, could only he reached by a special demurrer. 2. The 4th, 5th and 6th breaches are well assigned.

APPEAL to St. diaries Circuit Court. 1. The seventh instruction asked by plaintiff, and given by the Circuit Court, was erroneous.— It confounds the verdict of a jury in a civil case with the refusal of a committing magistrate to hold an accused person to bail, and further directs the jury to infer, not only absence of probable cause, but the existence of corrupt motives in the appellant. 2.

1. Mrs. Howard and John Tolson, who after the death of their father William Tolson, conveyed their interest in the land, to the complainants are necessary parties to the bill, and for want of these parties the decree must be reversed. Mitford’s Chan. Plead., 68, 220; Hickock vs. Scribner, 3 Johnson cases, 317; Fresh vs. Million, 9 Mo. Rep., 320, 321. 2.

<p>3. A change of Venue cannot be awarded after the issues in a case have been tried and a verdict found.</p> <p>2. If, in such case, a change of venue be awarded, a mandamus will lie from the Supreme Court to compel the Circuit Court granting the change to proceed and determine the cause.</p>

Charles Circuit Court. The indictment is in the words of the statute, and the venue properly laid. The indictment begins, “The grand jurors for the county of St. I.ouis, on their oaths, present, that on, &c., at said county,” &c. This is sufficient even without reference to the venue in the margin. 4 Mo. R-., 454, State vs. Palmer, et at. 1.

That the plaintiff’ gave no evidence to the jury to show that (lie said William C. .Porter, in his lifetime and during her coverture with him, was seized of such an estate in the lands, & 2.

1. The paper offered in evidence as a will, is not a will. It was never proved and recorded in this State, as required by the statute on wills. It was illegal to prove it in Virginia; no law of either that State or this authorizes the proof of a will of a citizen of Missouri in Virginia. This point is settled by reference to the evidence and our statute on wills. 2. The will vested no legal title in Pettus.

1. That the court cannot decree the sale of the slaves, as they were not made by contract subject to the debt. 2. The complainants intestate concealed defects and misrepresented the location of the land, and the price agreed to be given is greatly beyond the true value of the land, and is not fair and reasonable, and specific performance should not be enforced.

3. That it is a well settled principle of law that an arrest of a defendant .under a sa. sa. and a release or discharge by order of the plaintiff, is a satisfaction oí' the judgment upon which it issued; it is the same thing where sufficient property to pay the judgment is levied upon by virtue of a fieri facias, and the same is returned by order of the plaintiff!, without selling the property; in both instances, the acts of the plaintiff in causing the writs returned,…

1. The third instruction is erroneous, because it assumes that the patent to defendant conveys a better title than the plaintiff’s confirmation of older date. 2. The fourth instruction is erroneous, because it assumes that the plaintiff was only entitled to the quantity mentioned in. his grant, although the confirmation was for all within his survey— a larger quantity'.

1. The testimony offered by the plaintiff and rejected by the court ought to have been given to the jury; because it was necessary for the plaintiff; in order to sustain this suit against the defendants, to prove that there was an execution in the hands of the sheriff, under and by virtue of which the property in question was sold; — that there was a judgment of a justice of the peace, and a transcript thereof filed with the clerk to authorize the clerk to issue the…

1. That the bill has equity. 2. That the covenant is one of which the court can and ought to decree specific performance. 3. That the damages being liquidated, is no obstacle to specific performance — those damage.-, haring been relinquished. -!. That the administrators are the proper representatives to perform the covenant, under the direction of the court. 5. That the court erred in dismissing the bill.

1. That defendant, Adams, was not liable to the plaintiff, Childers, as administrator of .Moss,, for the loss of the negro. 2. The breach does not correspond to the promise as laid in the declaration, the promise heing“to take reasonable care of the negro during, the year.” The breach-is, that “the negro died in consequence of mistreatment.” 1. That the evidence supports the verdict as to the crnel treatment of defendant and death of the slave. 2.

<p>A constable for failing to return an execution is liable to the penalty of 100 per cent, per annum until the money is paid.</p>

That debtlies for the penalty given in the first section ofthe act concerning trespasses. Statute 1845; Commonwealth vs. Loring, 8 Pick., 370; Ex-parte Brown, 21st Wend., 31(:. 1. That the action of debt will not lie at common la\y for a trespass, such as the one complained of in this case. On this point there can be no doubt. 2.

<p>To authorise a complainant to examine one of several ‘defendants in chancery, if an answer has been filed by him and a replication filed, the replication must be withdrawn, and an affidavit of the want of interest of such party made.</p>