Volume 11 — Missouri Reports

Louis Circuit' Court. Malees the following points in support of the judgment of the Circuit Court: 1. Taking the instructions in the reverse order in which they were given and stand with the ',11 of exceptions, I maintain that the second instruction given by the court, which is in substance ■ at the admissions of defendant, Morrison, as to his title to the lot, were incompetent evidence, the unquestionable law applicable to the ease.

Louis Circuit Court. 1. That the court did not err in refusing to set aside the judgment by default, 1st. Because the affidavits of Hockaday do not show proper diligence. 4 Mo. R., 557; 6 do., 254; 7 do., 6; 7 do!, 25. 2nd. Because the affidavits are not by Webb, and no reason or cause is given why not, as required. 2 Cow. R., 581. 3rd.

Louis Court of Common Pleas 1. The court erred in instructing the ¡jury that the plaintiff had failed to prove the defendant guilty of a trespass, and in directing the jury, under the evidence, to find for the defendant. 1st. Because the court usurped the province of the jury. There was no evidence before the jury from which they could infer that the attachment was levied upon the goods of Perrin, hy the direction of Clafiin; and 2nd.

ERROR, to St. Louis Court of Common Pleas. I. The confirmations or grants by the commissioners to Papin, under Herví eux, and to Gratiot, under Koutier, having been made on the 14th December, 1813, take precedence of the confirmation to the plaintiff or those under whom he claims by or under the act of 13th June, 1812.— Therefore, if there is found any interference between either of the grants by the commissioners, and that under which the plaintiff'claims, the former will…

Louis Criminal Court. No pretence of objection can be had to the mere form of this indictment. 2 Ch. Cr. Law, 39. Two persons may be jointly indicted for a misdemeanor, and the wife may be indicted as well as the husband for this offence. 2 Ch. Cr. Law, 39, and notes; 9 Mo. R., State vs. Harrison and others. That where several keep a common bawdy house, they may be jointly or severally indicted.— 1 Chitty’s Cr. Law, 268; Thatcher’s Cr.

Louis Criminal Court. The act creating the offence of enticing away a sláve, declares the same to be grand larceny, and the allegation at the conclusion of the second count, that “the defendant, in manner and form aforesaid, did feloniously steal, &c.,” does not change the character or grade of the larceny, but is to be regarded as mere surplusage, adding a conclusion of law, and giving a name to the offence.

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

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

<p>T. Polk, for Plaintiff in error.</p> <p>Primm & Whittelsey, for Defendants in error.</p>

Louis Circuit Court. 1. The first and second questions asked by plaintiffs in the first deposition of Willey were reading and improper. 2. That the notes given in evidence as having been secured by mortgage of Willey to Norman Cutter, were improperly admitted, not being the same described. 3.

Louis Circuit Court. 1. The bill shows conclusively that the land, by far the greater part of it, if not the whole, does not lie in St. Louis county; and so the suit could not be brought there, by the positive provision of the statute. R. C. of 1835, p. 506, sec. 2; and the Rev. Code of 1845, is word for word the same. 2. This is plainly multifarious. Whatever lands C. D. Delassus had, descended, immediately upon his death, to his heirs, subject only to the payment of debts.

Louis Circuit Court. That the policy of insurance is a policy upon the freight bill, and that the assured are entitled to recover, if, from any of the casualties covered by the policy, the owners of the boat were prevented from earning freight on the voyage they effected the insurance for.

Louis Circuit Court. The only question is whether, if the city is liable as garnishee, whether this garnishee differs from a natural person in this respect, as it is certain a natural person would on… Held: that a corporation was liable to this process, under our statute. In Massachusetts, a different result had been arrived at. Union Turnpike Co. vs. Jenkins, 2 Mass., 37; New England Marine Ins. Co. vs. Chandler, 16 Mass., 275,277.

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

<p>1. The person who actually apprehends a slave, makes the affidavit and has the slave committed to jail, is to he deemed the taker up of the slave.</p> <p>2. A private person has no right to call upon an officer to take up a slave; he has the right to take up the slave himself, and if he call upon an officer, and the officer arrest and commit the slave, the officer will be entitled to the reward.</p>

Louis Circuit Court. Statement of the Case. In February, 1846, W. S. Gilman brought his action of trespass de bonis asportatis against W?!liam Milburn, in the St. Louis Circuit Court, for taking the hull of a steamboat.

Louis Court of Common Pleas. Statement of the Case. This was a proceeding under the sixtieth section of the act of the Missouri Legislature of f845, entitled ilAn act to regulate executions.” The record shows an execution in favor of Robert Campbell against Honoré Picotte, on a judgment rendered on the twenty-first day of November, 1846, for the sum of sixteen hundred and twenty-two 67-100 dollars. The execution was returnable on the 2d February, 1847.

Louis Court of Common Pleas The sheriff was entitled to judgment on the motion,— 1. Because the sale was advertised between the hours of 9 and 5 o’clock, for cash, and the defendantbidding under it, failed to pay or offer to pay on the day of sale. See R. C. 1845, p. 483, sec. 42. 2. The statute is mandatory, and the officer was bound to sell for cash between the hours specified in the advertisement, and the defendant knew the terms of sale. 3.

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

<p>A executes to B a note for the purchase of a tract of land on which C has a mortgage. The note is to be paid by instalments, to meet the instalments on the mortgage. A fails to pay B, by which B is prevented from paying the mortgage. This is foreclosed, and A becomes the purchaser of the land under the mortgage. Held, That A, by his own fault, caused the failure to pay the mortgage, and cannot set up this as a defence to the note.</p>

Louis Circuit Court. Statement of the Case. The appellants sued the appellee in ejectment for a certain lot in the city of St. Louis. In support of their title, they produced the following evidence, to-wit: 1. The record of a mechanic’s lien — demand against Abram Alien in favor of Meara & Yates, dated May 14,1845, for $48, accompanied with a description of the lot sued for. 2.

Louis Court of Common. Pleas. Statement of the Case. This was assumpsit in the St Louis Court of Common Pleas by Connett vs. the Switzers’, a mercantile firm at St. Louis. Connett in May, 1844, put into the hands of the Switzer’s a quantity of bale rope and packing yarn, to be sold on commission at a limit of six and abalf cents pes pound.

Louis Circuit Court. 1. A special order of court requiring the property to be produced at a specified time and place and delivered up to the sheriff is requisite under the statute; and an execution is no sufficient order ; Rev. Stat., 1835, sec. 14, p. 78, and sec. 37, p. 80. The words seem expressly to require that the defendant is to be ordered to produce the goods, “when and where” i. e., at a specified time and place. ,There could be no delivery without a time and place.

Louis Circuit Court. 1. The verdict of the jury was directly against the second instruction given by the court on defendant’s motion, and for this reason should have been set aside; for the evidence of Dodge was express to the agreement mentioned in that instruction, and was uncontradicted by any other evidence. 2.

1. That the ordinance pleaded is in conflict with the laws of the land, because it is the prerogative of Congress (Story on the Constitution, 369, book 3, ch. 15, sec. 522,) or of the State Legislature, (Gibbons vs. Ogden, 9 Wheat., 1,) to enact quarantine laws; and because the Legislature could not, under the Constitution grant to the city power necessary to the making of such an ordinance, Sta. Con., art. 3, sec. 1. 2.

ERROR, to St. Louis Court of Common Pleas. Statement of the Case. In this case the plaintiff sued the defendant in an action of trespass, and the declaration alleged that the plaintiff was legally entitled to the possession of certain premises, hut that defendant entered thereupon and ejected plaintiff and took possession of the premises, and the rents and profits thereof for the space of four years, to the damage of the plaintiff five hundred dollars.

Louis Court of Common Pleas. 1. The court had jurisdiction of the cause. Eev. L. 1845, p. 315, sec. 2, 3rd subdivision. No statute exists prohibiting jurisdiction in such case. 2. The appeal was properly granted by the justice. Every justice has power to set aside a judgment by default, for good cause shewn, upon such terms as shall be just. Eev. Code, p. 652^ sec. 9. The justice of the terms is to be judged of as well by the applicant as by the justice.

Louis Circuit Court. 1. That the court below erred in permitting the record and proceedings of the magistrate to be amended. No cause was shown why such amendment should be permitted. There was nothing before the court to show that the interlineations made by the magistrate were conformable to the record, process and proceedings before him; on the contrary, the interlineations, changes, and additions, were made by him upon original papers, the bill of items and the summons.

Louis Court of Common Pleas. 1. That plaintiff’s claim is a lien under the statute. Rev. Stat, of 1845, ch. SO, second division of the 1st section. The use of a barge is a necessary supply and equipment of a steamboat, in low water. If the complaint had alleged indebtedness on account of supplies furnished for the use of the boat, there could be no doubt that the complaint is good.

Louis Court of Common Pleas. That the instruction given by the court below, and which compelled the plaintiffs to submit to a non-suit was erroneous, for it assumed that there was no evidence before the jury from which they could infer a demand. It was in proof that in May, 1839, the defendant received on the note $100.

Lcuis Criminal Court. 1. No exception being taken during the progress of the trial fo the admission of evidence, or to 1 he giving or refusing instructions, it is too late to raise those questions on the mo'icn for a i ew trial. Kilgore vs, Bonic, 9 Mo. B., 291. 2. The motion for a new trial came too late, being made after the motion in arrest — the latter admits the verdict to be good and overrules the former. 4 Bar. & Cress., 160; (10 Eng.

Louis Circuit Court. Statement of the Case. This was an action of ejectment to recover a parcel of land near the city of St. Louis, brought by the defendant against the plaintiff in error, in. which judgment was rendered in favor of the plaintiff below, to reverse which this writ of error is prosecuted.

Louis Circuit Court. 1. The publication proved in this case under the statute, was altogether insufficient, and hence the judgment was illegal, and should have been set aside on defendant’s motion. Rev. Stat., 1845, p. 137.

<p>A devise by a husband to his wife “during her natural life, or widowhood” is not in restraint of marriage so as to render the condition invalid. The estate so devised is terminated by tbe marriage.</p>

Louis Court of Common Pleas. Statement of the Case. On the 31st August, 1846, a scire facias issued from the clerk’s office of the St. Louis Court oi Common Pleas on a mechanic’s lien, setting forth that the plaintiffs Gaty, McCune and Glasby had furnished materials for the building, edifice and improvements therein described, and done work and labor upon the same, and that on the 24th December, 1845, they filed in the office of the Clerk of the Circuit Court of St. Louis…

Louis Circuit Court. 1. That the contract is valid, the promisee is sufficiently described by the terms of the note.— The word heirs, as used in the note, is merely discriptio personae, and it has several significations known in law, and the plaintiff was an heir in one sense when the note was given. See Cruise’s Digest, tit. Devise, ch. 10,sec. 23; Bac. Abr., tit. Heir, B; Bacon vs. Bitch, 1 Roote, 381; Lockwood vs. Jessup, 4 Conn. R., 272, 2nd series or vol. 9.

Louis Court of Common Pleas. Question. — Has the Common Pleas of St. Louis county jurisdiction in actions of trespass against boats and vessels ? 1.

Louis Court of Common Pleas. I. The first and main question arises on the instruction given for the plaintiff below, to-wit, that the deed, from Martm Coontz to Tamer, does not rebut the prima fade evidence of title in Coontz, in the land located under the New Madrid certificate.

Louis Circuit Court. 1. The 9th instruction asserts that though Martin Coontz may have conveyed the land in New Madrid, in lieu of which the recorder’s certificate was issued to James Tanner, and though the plaintiff derived title regularly under Tanner, yet the legal title to the land located in the name of Coontz or his legal representatives, vested in Coontz and not in Tanner, or those claiming under him; and therefore that the plaintiff was not entitled to recover.

Louis Circuit Court. 1. The writ and the return thereof, being prescribed by the statute, it is not in the power of the party, the clerk, or even the court, to cause a different writ to be issued. And so, the writ was void from the beginning. 3 Mo. R., 286, Holliday vs. Cooper; 5 Wend. R., 276; 9 Wend. R., 338. 2. The writ being void, the sheriff was not bound to execute it or return it at all. 3.

Louis Circuit Court. 1. By virtue of her mother’s birth and residence for several years in Montreal in Canada, when and where the custom and usage of slavery did not exist, plaintiff claims her freedom. Pierre vs. Chouteau, 9 Mo. R., 1; Bacon’s Abridg., title Custom; 1 Blackstone, 68 and 76, et seg.,424, and cases there cited; Forbes vs. CocbraD, 9 Com.

Louis Circuit Court. 1. While the matter remained in the County Court, it was not a suit or action between parties. It was a proceeding required by statute, as the official duty of the County Court to settle the accounts of a public officer, and in a certain event to enter judgment against him. R. C. 1835, p. 151, tit. County Treasuries, art. 2; see 9 Mo. R., 118, Tetherow vs. County of Grundy. 2.

Louis Circuit Court. 1. Revised Code of 1825, p. 332-3, sec. 1, provides expressly that there shall be no dower in lands sold on execution, and this case is governed by this act. Ibid, 369, sec. 20; sheriff’s deed passes right of dower. 2.

Louis Court of Common Pleas. It is a settled rule of law, that upon an erroneous judgment if there be a regular execution, the party may justify under it until the judgment is… Held: that he had a right to his writ of error from the S. C.; that his proceedings in the C. P., were no waiver of his right to bring error; and a reversal of the judgment in the S. C., will he a reversal of all the consequent proceedings, including those in the C. P.,upon the venire denovo.

Louis Court of Common Pleas. That each of the instructions aslced for in the court below should have been given, and the refusal to give them is such error as ought to reverse the judgment. 12 East., 444; Koscoe, 139. Two propositions of law of importance to the appellant are contained in the three first instructions asked for and refused.

Louis Circuit Court. 1. That the court erred in proceeding to affirm the judgment of the justice without a trial de novo. Tide Rev. St&t., act to establish Justices’ Courts, art. 8, sec. 13. 2. That the court tried the case without a jury and without the consent of the defendant — the action being founded on account and not an instrument of writing. Art. 13, State Constitution; Pratte vs. Cabanne, 9th vol. Mo. R., p. 163; Myers vs. Wolfolk, 3rd vol. Mo.

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

Louis Circuit Cotirt. That the 18th see. of art. 8, of act concerning Justices’ Courts, in Revised Code, is conclusive .¿gainst the instruction of the court. In the 19th section of the same law, it is provided “that no set-off shall be pleaded in the Circuit Court that was not pleaded before the justice.” Now, if no set-off can be pleaded, why shall a plea be allowed to a set-off which makes such a plea useless ?

Louis Circuit Court. I.The plaintiff in the court below and in error insists, that the instruction given by the Circuit Court to the jury was error, in this, that it removed from the consideration of the jury the facts of the cause, and was a positive direction to them (the jurors) to find a verdict for the defendant, thereby discharging them from their peculiar province, viz., the finding of a verdict which they were sworn to render, and compelled the plaintiff to elect a…

Louis Circuit Court. 1. The County Court of St. Louis county is not a court within the legal, signification of that term, or if a court, is one of special and limited jurisdiction, and for any act done, ordered or directed beyond its jurisdiction, the justices ordering or directing it are responsible.

Louis Court of Common Pleas. 1. No contract is alleged which could sustain a suit even against the captain individually; for it is a naked contract, without consideration. Nothing was to be paid for carrying the money or the letter. Nor is there any charge of negligence. 2.

Louis Court of Common Pleas. 1. That the court below arbitrarily excluded from the jury important statements made by the witness Crenshaw, on cross examination. 2. That the court prevented the defendant from putting a proper and important question to the same witness on cross examination. 3. That the court permitted the plaintiff to testify in his own cause, contrary to a long established maxium of the law. 4.

Louis Court of Common Pleas. Statement of the Case. The declaration alleged in the first count a promissory note made by Chouteau on the 26th March, 1835, for $1706 25, payable six months after its date to the plaintiffs, which was dated at Philadelphia. The second count was for merchandize sold and delivered, work and labor done, money lent and advanced, by plaintiff’s to Chouteau in his lifetime, &c., and an assumpsit by him to pay therefor.

Louis Court of Common Pleas, Statement of the Case. The plaintiff sued defendant in assumpsit for money received by the defendant as clerk of th® steamboat Henry Bry, of which boat the plaintiff was owner of seven-eighths.

Louis Circuit Court. Statement of'the Case. This was an action of ejectment tried in the Circuit Court of St. Louis county in January, 1847. The plaintiffs below and defendants in error claimed to recover lot-in Evans’ and Lang-ham’s addition to the city of St. Louis, lying south of Mill creek and now within the limits of the city.

Louis Circuit Court. Statement of the Case. William Taylor anil Alexander Ferguson filed their original bill in the St. Louis Circuit Court, setting forth that Nathaniel Paschall on the 4th November 1839, made to Win. Taylor his note for $1500 payable sixty days after date — that this money belonged to Tayler & Ferguson jointly, and the note was their joint property.

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

Louis Circuit Court. The contract is a legal and valid contract; it is recognized by our law; as a common law settlement, in consideration of marriage ,it is good, and the plaintiff is entitled to relief. 2 Kent’s Com., 138, n. b.; 142, n. b.; 139, n. o. c.; Atherly on Marriage Settlements, 343, 344, 345; Prior vs. Hill, 4 Brown C. C., 139; Murray vs. Lord'Elibank, 5 Ves., 737; Carr vs. Taylor, 10 Ves., 574; 1 Atk., 192.

Lcuis Circuit Court. Statement of the Case. This was an action of covenant, commenced in the St. Louis Circuit Court on the 28th October, 1845, by the appellee against the appellant, on a policy of insurance to the amount of six thousand dollars, on manufactured tobacco, cut, chewing and smoking tobacco, leaf tobacco, presses, screws and fixtures, cutting machine and fixtures, household furniture, shed and fixtures, against loss or damage by fire — the said articles being…

Louis Circuit Court. Statement of the Case. This was an action of trespass with force and arms, brought by Ford against the Perpetual Insurance Company, for taking'from'the plaintiff a certain steamboat called the Inda. Plea, not guilty. The parties submitted the issue to the court upon an agreed case in writing, and the court found the issue and gave judgment for the plaintiff. The defendant moved for a new trial, which motion was overruled, and the defendant appealed.

Lcuis Circuit Court. Statement of the Case. Valentine brought an action on the case for the use of the St. Louis Iusurance Company, against Collier and ethers, the appellants, to recover the value of fourteen casks of bacon, shipped by Valentine on the steamboat Oregon, (of which the defendants were owners,) on a voyage from St. Louis to New Orleans.

Louis Circuit Court. Statement of the G.ase. This was an action on Covenant, brought by Brush against Treat, on a covenant to pay rent, and the declaration contained a general averment of performance on the part of the plaintiff. The pleas were, 1st, non est factum, and, 2d, a direct denial of performance on the part of the plaintiff.

Lcuis Circuit Court. 1. It is conceded, that the matrimonial domicil of the parties was New Orleans, they having mutually intended and agreed to fix their residence there. But a change took place, and St. Louis afterwards became their actual domicil. The rules which have been established in such cases, are as follows: The matrimonial domicil, governs as to all acquisition previous to the removal.

Louis Circuit Court. By the refusing of one set of instructions, and the giving of the other set, the Circuit Couit assumed and taught the jury, as law, two or three important propositions, which we think very-erroneous; and— 1.

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

Louis Circuit Court. Statement of the Case. In this case, Thomas Southworth and wife and others, legal representatives of one John Buzan, filed their bill to enjoin proceedings at law, and for further relief, against Thomas Hopldns.

Louis Circuit Court. I. That the court below erred in deciding that the act of 1841, requiring previous notice by a sub-contractor, was in force in St. Louis county after the passage of the act of 1843. The act of 1841, gave a lien to sub-contractors only in case previous notice was given to the owner or proprietor. Acts 1841, p. 105.

<p>The act of 1847 by which suits and process against volunteers who are absent from the State-are suspended until the regiment returned, is constitutional,</p>

Louis Court of Common Pleas. Statement of the Case. This was an action of assumpsit brought by Rutherford, to recover of the defendant, Coxe, the amount of a. hill of goods furnished to his wife. A great many special pleas were filed, all of which were subsequently withdrawn, and the parties went to trial on the general issue. The bill of particulars presented by the plaintiff, exhibited a running account, commencing January 25th, and ending Dec. 24, 1844.

<p>1. A, having the possession of a lot, leases to B. The lease is afterwards cancelled, and the premises surrendered to A. In a tew days C. is found in possession. A. not having abandoned his possession, this entry by C. is a disseizen, and will sustain an action of forcible detainer, upon the refusal of C. to deliver possession on demand to A.</p> <p>2. The complaint alleging a forcible detainer on a certain day within three years before suit, is sustained by evidence of detainer on any day within such time.</p> <p>3. An affidavit for a new trial, on the ground that a witness was absent, must shew the facts to be proved by such witness.</p>

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

<p>A verdict having been found, and no motion for a new trial made, the judgment will ba affirmed.</p>

ERROR from St. Louis Court of Common Pleas. Statement of the Case. The plaintiffs commenced their action in the St. Louis Court of Common Pleas in ejectment.

Louis Criminal Court. I. The State should have filed her plea or demurrer at the term at which the plea in abatement was filed, and the plea in abatement should have been determined at the term at which it was filed. R. S., p. 811, sec. 19.

<p>Although there may be nothing in the record to impeach the veracity of a witness, and the verdict be against his evidence, still it will not be set aside by the appellate court if it be manifest that the issue was properly understood by the jury. There may have been something in the manner or situation of the witness that rendered him unworthy of credit.</p>

Louis Circuit Court. Statement of the Case. On the 14th day of October, 1844, the plaintiff in error made three promissery notes to defend•ants in error, payable in two, four and six months, and-for the sums of $300, — $300 and $400.— At the same time, plaintiff in error made three several warrants of attorney authorizing judgments to be rendered on the several notes after maturity, for their respective amounts.

Louis Court of Common Pleas. Statement of the Case. This was an action of debt brought in the St. Louis Court of Common Pleas, by Milburn, the plaintiff in error, against Waugh & Corthron, and their sureties, on a bond executed under the provisions of the 25th sec. of the statute relating to executions. (Rev. Co. 1845, p. 480.) The defendants appeared in the court below, and pleaded two pleas, consisting of denials c.i the several allegations of the declaration.

Louis Court of Common Pleas. 1. These certificates of deposit were in legal substance the same as due bills or promissory notes, payable to order one month and one day after date respectively, on which interest should be chargeable after due; and these deposites were therefore at the time of the garnishment a fund bearing interest. R. S. 1845, sec. 1, p. 614; (1835, p. 333.) 2.

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

ERROR from St. Louis Court of Common Pleas. Statement of the Case. This is an action of trespass de bonis asportatis, brought in the St. Louis Court of Common Pleas, by defendant in error against plaintiff in error, for the value of a horse. The plaintiff obtained judgment in the court below, and the defendant has brought the case by writ of error to this Court.

Louis Court of Common Pleas. 1. The court erred in refusing to instruct the jury that Sherman’s false representations to his creditors, on the eve of his failure, were circumstances from which the jury might infer a fraudulent intent, unless rebutted. 2. The instruction given at the instance of defendant was erroneous and calculated to mislead the jury. Brooks vs. Mayberry, 11 Wheat., 78. 3.

Louis Court of Common Pleas. Statement of the Case. This was an action of assumpsit brought by Michael Christy in his lifetime, to the use of James Christy, vs. Littleton, the plaintiff in error. Held: used, occupied and enjoyed by said Michael Christy in his life time, at his request, and by the permission and sufferance of the defendant; also a plea alledging that Darby is no 1, nor had ever been administrator of Christy.

Lcuis Court of Common Pleas. The only question before the court is as to the sufficiency of the affidavit of Willi. The appellant contends that the affidavit is sufficient.

<p>1, An appeal lies from the judgment of the Law Commissioner in St. Louis county in actions-of replevin.</p> <p>2. An appeal will lie from an order awarding or refusing a peremptory mandamus.</p>

ERROR, to St. Louis Circuit Court. Statement of the Case. This is an action of replevin instituted by defendant in error against plaintiff in error, in the St. Louis Circuit Court, to the November term, 1845, for a negro girl named Maria. The plaintiff in error, defendant below, pleaded the general issue. The defendant in error obtained a verdict, and the jury assessed his damages at $944.

Louis Circuit Court. Statement of the Case. This is an action of repleven, brought by the defendant in error against the plaintiff in error in the St. Louis Circuit Court on the 22nd September, 1843, tor two slaves, Mary and Julia. On the same day, the writ was served and the slaves delivered to the plaintiff by the sheriff.

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

Louis Court of Common Pleas. 1. Under the act approved Feb. 24, 1843, a mechanic is entitled to a lien under a contract with the contractors. Acts of 1843, p. 83, sec. 1. 2. The requirements of the act to entitle the lien were fully complied with by the appellants. Acts of 1843, secs. 3 & 4. 3.

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

Louis Court of Common Pleas. 1. The covenant in this case was several and not joint, if the facts averred in the declaration are true as they must be taken to be, on demurrer, and where, from the subject matter of the covenant it is the evident intent of the parties that they should be taken distrihutively, they will be so considered, although the form of the covenant be joint. Ludlow vs. McRea, 1 Wend., 228; 1 John, cases, 319; 3 Pair!'., 65, 67. 2.

Louis Circuit Court, in Chancery. Statement of the Case. Held: that although the time had lapsed as to some of them, yet if any of them were still within the protection of the act, the survey was good for all. And this on principle. And to the same effect is the case of Kennedy vs0 Bruice, 2 Bibb, 371.

Louis Circuit Court, in Chancery. 1st. The deed of trust to Adams & Co., is void in fact ab initio. First, Because made in fraud of creditors. Second, Because the possession did not pass with the conveyance, but vendor retains possession during life, unopposed by vendees, claiming as his own, paying taxes, and expending large sums in building upon the lot, after the date of the deed of trust. 1 Desaussere, 557. 2nd.

Lcuis Court of Common Pleas. Statement of the Case. This was an action of trover, brought by the appellee, for the use of James Galloway and E.. E. Drake, at the September term, 1846, of the St. Louis Court of Common Pleas, for the recovery of a certain negotiable promissory note, made by Cottell & Davidson, payable to John Suydam and Joseph Williams, or order, for $140 22, drawing ten per cent, interest after maturity, and endorsed by said Suydam and Williams.

Louis Criminal Court. Statement of the Case. This was an action of debt commenced by the City of St. Louis on the 23d day of July, 18-17, in the Recorder’s Court of the City of St. Louis, to recover the sum of five dollars for violating an ordinance prohibiting the use of water from the water-works without a license. The summons issued on the 23d of July, and was made returnable forthwith.

Louis Court of Common Pleas, in Chancery. 1st. The agreement set up in the bill varies essentially from that given in evidence. The words “grant, bargain and sell,” under the statute of Illinois, do not amount to & general covenant of seizen of an indefeasible estate of inheritance in fee simple, absolute, but only a covenant against the personal acts of the grantor, and for quiet enjoyment.

Louis Court of Common Pleas. 1. The plaintiffs were not entitled to recover without proof of their partnership. 2. The plea of the general issue denied the partnership of Anson and the defendant, and it was therefore incumbent on the plaintiff to prove it. 3. The defendant’s name not in any manner appearing on the bill, he could not be held as an acceptor without proof either that he did in point of fact accept it by the name of Geojge Anson &.

Louis Circuit Court. 1st. That the word “grant” implies a warranty in a deed conveying a chattel interest in lands. Held: that although the word grant used in a lease for years, has been construed into a covenant as between lessor and lessee, yet it has never been so understood as between assignor and assignee of the lease. And for the same purpose, we cite Shepherd’s Touchstone, 160-165.

Louis Court of Common Pleas. The only question which is or can be raised upon the record in this cause, is, whether the bond sued upon be void by the reason of the alleged defect in the affidavit to hold to bail, in the original action against Samuel A Childs, and in which original action the said Samuel A. Childs was arrested and discharged from arrest upon the execution of the bond by him, together with the present defendant, John Doyle, as his security, and not whether he…

1st. The testimony offered of Nolley’s embarrassed and broken condition in 1839-40-41, and up to the execution of the bond sued on, was legal, competent and pregnant proof to establish the main issue in the cause that the defaults of Nolley, if any, were committed anterior, and not subsequent to the bond.

) 1. It is admitted that in the settlement of partnerships, the joint estate is first applicable to partnership debts, and the separate estate to the separate debts. But in this case, the note for $1,500, executed by the partners in their individual names, is the joint and several note of the partners, and created a joint and several indebtedness, although not executed in the name of the firm.

1st. The finding of the court was clearly against evidence, and 2nd. The court manifestly erred in refusing to set that finding aside. The appellee insists that the verdict ought to stand. That so soon as the sale was made on either of the executions, the note became payable, appellant being the purchaser; and especially, as the land sold for a larger sum than that called for by the note.

1. The provisions of the tax sale law, approved February 27th, 1843, so far as they tend to convert had titles into good titles, are unconstitutional, and when used in order to eject third parties from land, they should be considered voil. 2. The provision of said law making the sheriff’s deed prima facie evidence of title in the purchaser, is a violation of the principles of the constitution. 3.

1st. Could the chancery court entertain jurisdiction of this cause? Does it not come under either the heads of trust, fraud or accident, or a, case of extreme hardship? 2nd.

) 1. Complainants claiming title to the land sued for under the will of James Matson, should have made the executors of said will parties. 2. If they claim under deed of Robert Matson, he should have been made a party. 3. There was no claim in the bill for rents, and nothing said in the bill about improvements, there should therefore have been no evidence heard or decree given for rents. 4.

The provisions of the 22d section of the 3rd article of the act concerning Criminal Practice, could only have been intended to apply to cases of trespass to the persons or property of natural persons, and must have been only intended to prevent prosecutions instituted from ill feelings excited by petty trespasses. The act concerning School Lands, makes it the special duty of the grand jury to protect the school lands by prosecuting trespasses.

The plaintiff insists, that except the limitation which the Constitution imposes upon a man’s real estate — that of being taken for public use — that he owns it subject to his own will and pleasure, as to sale or disposition, while not in debt.

1. The court erred in refusing to permit plaintiffs to prove that the water in the Bone Feme creek was rendered unfit for the U3e of horses and other stock' and for other domestic purposes at the farm of the plaintiffs; and that the fish in the creek were destroyed and rendered unfit for use by the distillery. 2 Starkie’s Ev., 541. 2.

1st. That the said Henry Bartlett was the principal debtor, and the said Price, Kerr, Young and Edwards were his sureties in the bond made to Curtis for the payment of the said sum of $1196' 18, as stated in the bill. Gow on Partnership, 283, and note (v.) as what are debts of a partnership, and what are individual debts of a member of the firm. 2nd Greenleaf’s Ev. sec. 484.

I. The judgment against the plaintiffs had been satisfied before the issuing of the last execution from the justice’s court, for two reasons:— 1. Where goods sufficient to discharge the judgment are seized on s. fieri facias, the debtor is discharged. 4 Mass. R., 402; 6 do., 58; 16 do., 63; 4 Burrows R., 2482; 3 Mo. R., 249; 9 Mo. R., 24; 12 John. R., 207; 7 do. 428; 2 Lord Ray., 1072. 2.

I.The execution under which the sale of lot No. 76 was made, was not satisfied by the receipt of Hough. 1. A receipt can he explained by parol evidence. (9 Mo.

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

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

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

The errors assigned by the plaintiff in error, are the following: 1st. The first instruction given for Draper, the plaintiff below. It goes on the ground that there was collusion between Ayres and Heffner as to the possession. The law is that the defendant shall be shewn in possession at the commencement of the suit. The instruction denies this principle. 2nd. The refusal of the first and fourth instructions prayed by the defendant.

<p>The 6th section of the act incorporating the town of Louisiana, which provides that “the recorder shall have power in a summary manner to hear and determine all cases involving a violation of the ordinances of said tow'n,” &c., alters the general law concerning towns, and gives the recorder exclusive jurisdiction in such cases.</p>

The only question to be decided is, whether the court below committed error in sustaining the demurrer of the defendant to the declaration; or, in other words, whether á legal cause of action is set forth in any or either of the breaches assigned, for if any of the braeches assigned be good, the demurrer should have been overruled. State, to the use of Darland, adm’r, &c. vs. Porter, 9 Mo. R., 356. 1.

) 1st, The deed of trustfrom Binns to Turner, for use of sister and children, for slaves and personal estate, duly registered in Tennessee, where made, is a valid deed. See laws of Tennessee, “Slaves” and “Registry.” 2nd. Such deed, if impeached for fraud on part of Binns, against creditors, must be attacked by the creditors of Binns. 3rd.

1. All the proceedings in the cause are erroneous from the beginning,, because ihe original itself was and is void in law, and that as the defendant made his objection (o its validity upon the return day thereof, before the justice of the peace, and the same was overruled and mentioned in the record of the justice, as is specified in ihe statute, the defendant, though compelled by this judicial error'to answer over to the merits of the action, now has the same right to…

I. The claimant having voluntarily suffered a non-suit, and his motion to set it aside being overruled, cannot by appeal from such a decision remove the cause into the Circuit Court. II. The demand is exhibited in the county court in the name of Yallaly, while the judgment of the Circuit Court is in favor of Everett to the use of Yallaly.

1st. The assignment of the complainants’s note to Sparks did not deprive him of any equity he had against .the obligee. Mo. Digest, 105; 7 Mo. Reps. 524. 2nd. The indebtedness charged is such, that by statute, or in equity, might be plead to the note. Mo. Dig. 578, and infra. 2rd.

1. Considering the note in the light of an ordinary note, not negotiable, there is evidence in-the cause sufficient to show that a suit against the maker would have been unavailing — and in fact, that the necessary diligence was used under all the circumstances, on the part of the plaintiff, to recover the debt sued lor. Pocock vs. Blount, 6 Mo. R., 338. 2.

1. The oath of the arbitrators was not substantially according to law. 2. The arbitrators were guilty of misconduct in permitting Verrill as a witness for Graham, who was a surety of Graham, and a stockholder and partner in the company. 3. Upon the face of the award the whole indebtedness of the company was. adjudged against Vaughn, he being only a part stockholder. See Digest, tit. “Arbitration,” p. 121. 1.

I. The affidavit made before the Justice was good, and sufficient in law to warrant the granting of the appeal. Digest, 1845, p. 674, sec. 15. II. If the affidavit was not sufficient in law, the court erred in refusing the appellant the liber' ty of amending it as he proposed to do.

1. The court below erred in refusing to give the instructions asked for by the defendant, and in giving those the State asked for. 2 The court erred in refusing to set aside the verdict of the jury. 3.The court erred in overruling the defendant’s motion to arrest thejudgment. 1. The indictment is sufficient. 2. The instructions numbered 1, 2, 3,4, 5, asked by defendant were properly refused. The law was correctly declared in the instructions given by the court.

I. There being no affidavit filed, the justice did right in not allowing the appeal.

1. The declaration in this case was filed the 19th February, 1840. On the 9th March following, the defendants filed their pleas, and issue was joined. The pre-emption law under which the defendants made their entry and obtained the patents set up in their defence in this action; was not passed until 1841.

The Circuit Court erred in rejecting the deposition of Cummins. Hardy & Ferguson having been proved to have been partners, the admissions of Hardy were good against Ferguson, unless they were made after the dissolution of the partnership, and there was no evidence that there ever had been any dissolution. This is too clear for argument, and renders any reference (o authorities unnecessary. 1. The evidence did not show when the partnership alluded to existed. 2.

<p>An assignment of a certificate of entry set aside in chancery.</p>

1. This is nota case where an appeal will lie from the county to the circuit court. Rev. Statute 1835, sec. i, art. 8, p. 63. As a legislative construction of the statute of 1835, see revisal of 1845, p. 106. Amotion to dismiss for want of jurisdiction of the subject matter, will lie at any time. Latham vs. Rdgerton, 9 Cow., 229; 6 Cow., 585,592,593; 4 Cow., 540; Washburn’s Dig., p. 611. 2.

I. The following instruction, given by the court on its own motion: — “That to render the defendant liable as a partner in the purchase of the horse in controversy, it is not indispensible that the plaintiff should prove an actual co-partnership: if the defendant consented to be held out to the community as a partner, he is liable as such, although there may have been no partnership existing,” — was erroneous and not warranted by the facts in the case— 1st. Because there was…

The only question this case is, the right of a vendee of the landlord to maintain this action against the tenant. To sustain this right, reference is made to 2 Marshall, 204; 3 Marshall, 149; 2 Littell, 294; 1 Monroe, 127; 2 Dana, 245; 3 Dana, 6.7; 3 B. Monroe, 271.

1. The Circuit Court properly refused to give the instruction asked by appellant. St. Louie Floating Dock Ins. Co. vs. Soulard, 8 Mo. II. 665; Wells vs. Gaty, et al, 8 Mo. R. 681; Sublette and Vasques vs. Noland, 5 Mo. R. 516. 2. The Circuit Court properly refused to arrest the judgment. Sublette and Vasques vs. No-land, 5 Mo. R. 516. 3.

1st. All the evidence about the note in bank and the payment of it, ought to have been excluded, unless the note had. been produced in court. 2nd. The court ought not to have given the 2nd and 3rd instructions asked for by the plaintiff because there was no evidence to base them on.

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

1. From the proof it is quite evident that upon the sale of the mule, Candell took the note and money in satisfaction of the price.

1. There was no evidence whatever of the assignment of the note to Agnew. The only state, ment of Mr. Dryden, the witness, upon the point is, “it came to his hands for suit.” Who gave it him — where he got it — what was paid for it, or by what authority he filled it up to Agnew, does not appear. In Wood & Oliver ys. McDaniel & Ousley, 7 Mo. R., 543, is a similar case.— There an assignment was attempted to be made without authority, andit was held void by this court. 2.

The only question is whether the note being given for a sale made in violation of law is valid. To peddle clocks is prohibited by law unless a license be first granted. This is clearly a case in which the consideration of the contract is malum prohibitum.” 7 Mo. It., 585.

^PPEA.E from Saline Circuit Court. 1. the award upon which the action of the plaintiff is founded, is void for the following reasons s 1st. Because the said Wallace, Miller and Williams exceeded their authority in malting the ■same. 2nd.

Francois Circuit Court. 1. It is substantially proved that the stove and appurtenances in controversy were the property of Henry N. Hartt, and'no evidence has been given that he was ever lawfully divested of his property therein, or that Crain ever had title to, or possession of said property. 2.

1. The confusion of advertisements, and the refusal to sell a portion of the attached property, and the sale of property not attached, constituted irregularities sufficient to vitiate the sale, of all which Cook had notice, these things having been done by his attorneys, and at his request. Hayden vs. Dunlop, 3 Bibb, 216; 3 Dana, 621; 5 Blackf., 262. 2.

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

Clair Circuit Court. I. I contend that by the statute in reference to the assignment of bonds and notes, the assignment must not only be in writing, but the name of the assignor must be signed, to enable the assignee to maintain an action as the legal owner of the note, by assignment. Rev. Code, p. 190, sec. '2. It.

1. On the facts stated in the bill, the complainant is entitled to the relief prayed or equivalent relief by a decree requiring the defendant to execute a conveyance to Godsey in lieu of the one the defendant destroyed. 2. The evidence given establishes even against the denials of the answer, all the material facts charged in the bill.

1. Bryant has no legal title to the 148 acres of land sold to Korine. 2. A trustee cannot sell trust property and purchase it himself. .3. The administrators of Bryant changed the nature of the contract, overreached the appellant, defrauded him, and conveyed him no specific title for the land he contracted to purchase of said Bryant. 4 Howard’s R., p. 503. 4.

1. The case made by the complainants bill was exclusively cognizable in the County Court, and consent of parties could not confer jurisdiction where the law has expressly denied it. 8 Mo. R.,. 169, Miller vs. Woodward. 2. The Circuit Court erred in receiving the testimony of Henry P. Horine, an interested witness. The court also erred in the admission of the release to Henry P. Horine, to render him competent. 3. The decree is erroneous.

The decree dissolving the injunction and dismissing the bill for want of equity, is erroneous; for if the bill, taking it as true, contains equity, the answer admits all the essential allegations except the intent to deceive in making the false representations, and the only thing set up in the answer by way of excuse, is the ignorance of the defendant that the representations were false at the time he made them. 10 Ves., 475; 1 Vernon, 336; 9 Ves., 23; 2 Vernon, 150; 1 P.…

1. The defendant’s plea is overruled because his answer precedes it. Mitford’s PI. 364; note' 1. 2. If the answer of defendant is made in support of the pJea, the court will intend the matters charged in the bill against the defendant, unless they are fully and clearly denied in the answer. Mitford, 362; note 1. 3.

<p>1. Neither the Supreme Court, nor any other court or Judge can on a petition for a habeas corpus, investigate the legality of a conviction in, or a judgment of a court of competent jurisdiction.</p> <p>'2. A person convicted and sentenced as a free person to imprisonment in the penitentiary can not be discharged on a habeas corpus, on the petition of a person alledging such convict to be his slave.</p> <p>If a slave be committed and sentenced to the penitentiary, such fact not appearing in the record, it is an error of fact, and maybe corrected by the court in which the judgment was rendered, on a writ of error coram vobis.</p>