Volume 12 — Missouri Reports

1st. There is no misjoinder of action in this case, because the will affects alike all the property, real and personal. Story, Eq. PI., 224 232. 2d. There is no misjoinder of parties. The complainants claim a joint undivided interest in the whole subject matter of the suit, as well in the land as in the personalty, and they claim all under the same title. The interest of one cannot be settled and decreed without ascertaining the interest of the other. Story, Eq.

1st. It is admitted that fraud will vitiate a sheriff’s sale, and that a purchaser cannot hold property who participated in such fraud. ■2d. It is insisted that where the purchaser is without fraud, and for a valuable consideration, public policy requires that a party injured by the act of the sheriff, should be left to seek his redress in damages, instead of being permitted to pursue his property. 1 Mo. Rep. 754; Kean, vs. Newell; Hicks & Hammond, vs. Perry ; 7 Mo.

<p>APPEAL FROM THE BUCHANAN CIRCUIT COURT.</p>

1st. The plaintiffs showed a title good in itself; the entry of June 2, 1821 ; the survey August S, 1821 ; and patent of November 13, 1822 ; constitute a valid and perfect title in J. B. Delisle to the land in dispute.

1st. For the purpose of settling the controversy between the complainant and defendant, all necessary parties are before the court. It is not material where a married woman sues as a feme-sole, that her husband should be a party to the suit if he be a non-resident of the State, or without the jurisdiction of the court. Strory’s Equity PI, §61, N. 4, 63, N. 3,77, 80, 135, a. 229, also Sec. 72.

<p>1. Justices of the peace have jurisdiction over actions of trover where the damage claimed does not exceed fifty dollars.</p> <p>2. An administrator can maintain an action of trover ir everj- case where the deceased might have done in his life time,</p>

The acts charged by respondent and found by the court as committed by complainant shew that complainant is not an innocent and injured party. By the cruel and inhuman treatment of the wife the husband became guilty of that which entitled the wife to a divorce, and having thus lost all right to hold her bound by her marriage vows could not be injured by her adultery. He having violated the contract has no-right to complain of its breach. 9 Mo. R. 539; 14 Wend. 644 ; 3 Eng. Ec.

1st. The plaintiff below appellee here seeks to recover for money had and received, and the defendant below appellant here may rely upon every thing which shows that the plaintiff ex equo et bono, is not entitled to recoyer.

<p>1. To entitle a party to give parol evidence of the contents of original papers in a suit tried before a justice of the peace whose terra has expired, he must first prove their loss either by the official certificate of his successor or by his examination under oath.</p>

FRANCOIS COUNTY. It is insisted that the court below erred in compelling the defendants to trial when the clerk had failed to send up papers which were material for the defendants and which he coHld not by any possibility procure so as to use upon the trial the more especially when the defendant had been put in that condition by the act of the other party. 1st. The affidavit of the counsel should have designated distinctly what papers were not sent up by the clerk.

The appellant insists upon the reversal of the decree for the following reasons: 1st. Because the said Russick 4 Betzhold appellees let judgment go against them in the suit at law, and did not avail themselves of their defence on the trial at law before a jury, or the court sitting as a jury, nor did they bring the ground of their defence before the court of law on amotion for a new trial Bateman vs. Willoe, Schoale & Leproy’s reports, 1 vol. 203 ; Baker vs. Elkins 1 Johnson…

The only question in this case is whether appellee was entitled to recover the aforesaid interest upon the amount of his execution. The record sho-ws that the appellant excepted to the opinion, of the court below in giving said instruction, and also in overruling his motion for a new trial.

1st. That the court erred in giving to the jury the said instructions prayed for by plaintiff. 2nd. The circuit court erred in refusing to give to the jury said several instructions of defendant which were rejected by the court. 3d. The court ought to have granted the defendant a new trial of the cause for the reasons set forth in his said motion therefor. The only question presented by the record is the sufficiency of the evidence to sustain the plaintiff’s declaration.

1st. That the court erred in rejecting, upon the trial of the cause, the said writing obligatory as evidence in proof of the issue upon the plea of non est faetum. The instrument being set out by defendant on oyer, became a part of the declaration, and the proof offered corresponded therewith and with the declaration as prepared by plaintiff.

That at the time the defendant was summoned as garnisheo in the cause, he was indebted to Pearce, in the sum of $800, by virtue of the note given by him to Pearce therefor, and that there is no evidence in the cause conducing to show that the note had been assigned by Pearce to Sharp before the garnishment, but if there be any legal evidence of the assignment, it conduces to show that the 3qme was made by and between Pearce and Sharp, to prevent the debt therein specified…

1st. The court below erred in not excluding from the consideration of the jury all the parol testimony relative to the terms of the contract between Imboden and Hanger after their written contract was introduced. 2 Phillips on Evidence 551 note 422. 2d. That there was no legal evidence in the court below that Imboden had contracted with the United States to carry the mail on route No. 3008, from Potosí to Van Burén. The paper introduced was at best a mere showing that the…

1st. The declaration is defective,, and for that reason the plaintiff’s demurrer to the defendants second plea ought to have been overruled. Held: and has holden fast, not oDly to the money due the plaintiff from the county, hut also to his two warrants, one of which he obtained from Eiley, at a discount or shaving, at the rate of fifteen per cent upon the gross amount, by falsely and fraudulently representing to him that there was no money in the treasury on the 5th day of…

1st. The bond having been made payable to the present plaintiffs in their official capacity, suit should have been commenced in the name of the present justices of the county court. 2d. In order to take a case out of the statute of limitations, there must be such a promise, coupled with the original consideration, would create a new and subsisting debt. 6 Mo.

To reverse tlie judgment of the court below, the plaintiff in error relies upon the following points: That a judgment of a court having jurisdiction of the parties and the subject matter in controversy, is conclusive until reversed ; and that evidence to show that the trial was not upon the merits is not admissible. 1 Phillips on Ev. 321 ; Bernard v. Flanders, 12 Vermont, 657; 9 Mo. R. 792; Callaban v. Griswold, 1 Greenl. 598, note ; Pike v. Hill, 15 Vermont, 183.

1st. The appellants insist that the decree ought to be reversed because it is not supported by the evidence in the cause. 2d. We insist the decree should be reversed because the land sought tobe recovered, is described in the bill and decree with so much uncertainty as not to be capable of identity- 3d. A third reason why the decree should be reversed, is that forty acres of the land to wit: S E of N E sec. 26.

1st. The appellee bad neirher a property general, nor special in (he slaves Stephen and John, that would authorize him to recover in an action of trover. 2d. A special property can only arise from possession and the appellee never at any time had possession of said slaves. 3d. A general property is a perfect right to the thing, coupled with possession, or an immediate right to the possession. 4th- It will be contended that, the failure of .Tones to pay the-mortgage debt did…

This was aguí fain action, by Finley, against Langston,in the Boone circuit court, to recover the penalty of three hundred dollars, given by the first section of the act of the 26th of January, 1835, against the firing of woods, marshes and prairies.

'' 1st. The only right of Neat, if any, to the property injured, being acquired under the stray law, it was necessary for him to show a strict compliance with the provisions of that act, to show a right of property m him, and entitle him to recover for a trespass on his constructive possession to recover in trespass, the plaintiff must have actual or constructive possession. If not having actual possession he must have the property and constructive possession.

<p>ERROR TO LINN CIRCUIT COURT.</p>

<p>ERROR TO PLATTE CIRCUIT COURT.</p>

The circuit court ought to have sustained the defendants’ demurrer, because no exhibits were filed by the complainants with their bill, and for the additional reason that the bill is multifarious, the interests of Angeny, Price and Davison being entirely distinct and separate and wholly disconnected.

That the court erred in sustaining the demurrer to the first and fourth counts of the plaintiffs declaration at the November term, 1847, of the court. The defendants having pleaded to the merits of those two counts, and issue having been taken upon the pleas of defendant thereto.

1st. The summons issued by the justice of the peace was not so served as to authorize a judgment by default against Wm. Crowley Sr. It does not appear that the writ was served in the township. 2d. The first execution issued by the justice does not appear to have evei been returned, and thus the second was improperly issued. 3d. The return of the constable on the execution issued 7th July 1845 is insufficient to authorize the clerk to issue on the transript.

There was no evidence in the cause showing who were the heirs at law of Antoine Dubreuil. The record of proceedings in partition was competent evidence to show a transfer cf right from the parties thereto to Chauvette Dubruiel, but nothing more.

The administrators of Philip Dirtin having used the money of the widow of said Philip Dirtin in paying for said land and taking (he patent in the name of said Philip Dirtin dec’d, created a resulting trust in favor of Mary Dirtin the widow of said Philip. McGuire vs. McGowan 4 Desan 491 ; Perry vs. Head 1 A. IC.

1st. The evidence shows conclusively, that the complainant is not the innocent and inj.uredl party. She was guilty as shown by uncontradicted evidence, not only of equal offences but of similar offences. 2d.

The payee had the right to give the c redit on such note as he pleased, and the offset ought to have been rejected, at all events, the $45 for the horses and spoons ought to have been rejected, as it was argued that this amount should go as a credit upon another note.

1st. That the circuit court erred in permitting the plaintiff to give to the juiy upon the trial of the cause, as explanatory of the receipts read in evidence by defendant, the testimony of Thomas Hanna, and the three accounts referred to by the witness, marked A, B and C, and the said note with the endorsements made by Oibson thereon as read by plaintiff. 2d. That the court erred in giving to the jury the said first instruction asked for by plaintiff and objected to by…

1st. The decision oT said county court was not and is not such a decision as will legally entitle a writ of error to lie from the circuit to the county court thereon. It was not and is not a judgment at all, and is no bar to the future presentation and reception of the same report by said county court.

1st. As against the appellants, John H. Howe and Robert Wallace, the bill of sale of the negro woman Charlotte, in the year 1829, by Shackleford to the infants, Hefty Howe, Martha Ann and Andrew J. Howe, under (he cii cumstances thereof) is fraudulent and void.

1st. That in all cases the mortgagee has a right to foreclose his mortgage and to sell whatever interest the mortgagors have conveyed to him. See the statute. 2d. That the question as to what title was conveyed by the mortgage, or whether any, cannot in this proceeding be inquired into. 3d. The makers of the deed are estopped from saying that they conveyed no title. 4th.

1st. The settlement of Margaret McGee is no evidence in this cause for defendants because her letters were vacated upon her marriage with McGee, and she had.no .right to make settlement thereafter with any person but the administrator, “ De Bonis Non.” See statutes ’43, sec. 24, and therefore the court erred in giving defendants second instruction. 2d. That any person interested in the estate has a right to recover upon the bond at any time that a breach thereof occurs, a…

LOUIS CIRCUIT COURT! By the statute law of Missouri, the action of ejectment could' be maintained on a Nevi Madrid location. Now the return of the survey and plat of the tract of land surveyed for Jos. Hunot or his legal representatives to the recorder of land titles, is either the “ location” of this particular New Madrid claim, or it is not.

<p>New Trial. — If the court gives irrelevant or erroneous instructions, and the verdict of the jury is against the instructions, but in accordance with the law applicable to the facts of the case, a new trial should not be awarded.</p>

<p>PETITION FOR MANDAMUS ON THE JUDGE OF THE COURT OF COMMON PLEAS WITHIN AND FOR THE COUNTY OF ST LOUIS.</p>

1st. The legal title to the choses of the bankrupt passed to the assignee,, by operation, of' the bankrupt act (sec. 3,) see 10 Mo.

The judgment ought to be reversed for the following reasons : 1st. Because the condition in which the premises were, when leased to tVe defendant) was not afterwards changed, and the defendants before they entered, knew the situation of the premises, the dampness in the rear of the store, and agreed lb repair, by reason of which they had no right to abandon for any cause existing at the time of their entrance into possession. Westlake vs. De Graw 25 Wen.

1st That the fipding of the jury was not warranted by the evidence. 2d. As the affirmative of the issues was on th.e side of the plaintiffs, íhey, must be held to, show with reasonable certainty that the defendant was chargeable, and not only so, they must also,sho.w that he was chargeable with a definite amount, and for failing to show either-of these things, it is contended with confidence that they should have failed in their action,.

This was a suit in chancery instituted by the appellants who are the widow and heirs of John Doggett deceased, against the appellees, to set aside a conveyance alleged to have been made by the said John Doggett in his lifetime, to the defendant Lane, of a tract of land in St. Louis county, containing 672 arpens. The deed bears date 1st day of June, 1829, and wás ■acknowledged on the same day before Jos. C. Brown, a justice of the peace, and subsequently recorded.

1st. The 13th section of article 6th, title practice and proceedings in criminal cases revised statutes of Missouri, page 880 declares “that it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue or on any material fact to be tried.’’ Can the true construction of this st atute be that such persons as aie described in the statute, aro competent jurors unless challenged by the defendant ?

STATEMENT of THE BASE. This was an action of ejectment brought by the plaintiff in error to recover a lot in the city of St. Louis, frohtihg about 40 feet on Washington Avenue, between 4th and 5th streets.

LOUIS COURT OF COMMON PLEAS The only question presented in the case is, whether the defendants demurrer to (he plaintiff’s amended complaint, was properly sustained. The cause of action set forth in the complaint is essentially different from that in the case of Raritan vs. Pollard, 10 Bio. R, 683; and fairly presents the queslion whether our statutory lien is strictly to be confined, in all cases, to causes of action arising within the territorial limits of this State.

1st. Can a plaintiff have several executions of the same kind running to different counties at the same time. 2d. If he can, is the clerk who refuses to sign and seal them, liable to an action, &c.? The real question to be settled here is, can a plaintiff' have several executions of the same kind running to different counties at the same time ? 1st. Several executions may issue to different counties at the same time. Rev. Stat.

1st. The indictment in this case is clearly [defective. It is not suffiicient to allege merely iij the words of the statute that the defendant practiced law, &c., for a livelihood. It should have charged that he practiced for fees, compensation or reward. Practicing law for a livelihood is a conclusion of law to be drawn from the fact of having practiced for fees and compensation, and if such fact exists, it ought to be slated.

King and Fisher brought their action against the S. B. Lynx, on a contract of affreightment. A parcel of wheat, (880 sacks) was sliiped on board the Lynx and her barges, from a place in Illinois, abovethe lower rapids, consigned to K. & F at, St. Louis. The barge that contained the wheat was brought down in tow by the Lynx, to the head of the rapids.

We contend that it is undeniably true that this case is in every essential point like the case of Jacob Hawthorne vs. the State, and the opinion of the court in that case is a true and clear exposition of the law, fully sustained upon general principles, and the case of the State of Delaware vs. Phalen & Pain 3d Harrington R. 452.

This is an action on the case brought in the St. Louis court of common pleas to the September term, 1846, in which the appellee plaintiff below obtained a verdict against the appellants defendants below for §541 92. The appellants moved to set aside tho verdict, assigning for reasons the admission of incompetent evidence, and the other ordinary reasons for a new trial.

1st. That though the transaction mentioned in the pleadings, may appear upon its face in the assumed character of an absolute sale, yet the testimony proves that at the time it was intended by the parties, and was merely a mortgage for the security of advances made by the defendant, and the court will so treat it, it being a question of fraud. 2d. That the. paper purporting to be signed by one of the complainants, giving the transaction another and different character from…

LOUIS COURT OF COMMON PLEAS The 23d section of the act concerning boats and vessels,” gives .jurisdiction to justices of the peace in cases under said act, when the demand shall not exceed ninety dollars.

APPEAL ER.OM ST. LOUIS CIRCUIT COURT: The only question presented by this case; is : Did the circuit court err in dismissing the appeal ? The third sub. of the first section of of the act of 1841,, establishing the court of common pleas for St. Louis county, gave to that court exclusive appellate jurisdiction from judgments rendered by justices of the peace. See Laws 1841, p, 50.

The only question in this case is, will an execution confessedly without any judgment to support it, justify an officer who seizes and sells property in virtue of it. I. concede the authorities go to the extent of saying that if an execution is sound on its face, and the court be a competent court to try the canse, a simple exhibition of his writ, without any thing offered to rebut it on the other side, is conclusive for his defence.

This was an action on the case brought by appellant, in the St. Louis court of common pleas against the appellee. The declaration contained three counts. The two first counts were substantially the same, differing mainly in this, that the first stated the case more fully in detail, the second more concisely.

The amended complaint showed a sufficient cause of action in this, to Wit: 1st. It showed that defendants held the premises over after tile termination of the time for which they were let and after demand made in writing for the deliverance of possession thereof by 'the agent of the person having the legal right to the possession.

Goorge M. Pryor, brought suit against Win. J. Mullen, in the St. Louis eiicuit court, at its April term for 18-18, on a non-negotiable note, drawn by one Urbin E. Fort, payable to tho ordor of said Pdullen, bearing date December 12th, 1840, payable oup day afterdate, and assigned to said Pryor on the 15th Dee., 1840, for the sum of two hundred dollars.

After the evidence had been adduced on the part of the State, the judge, on his own account, gave the 'following instruction : If the jury find from the evidence that the defendant was a partner in carrying on a faro bank, furnishing a part or the whole of the money required to cairy it on, and that money was bet and won upon said bank, whilst the defendant was partner as aforesaid, upon the joint account of the said defendant and on other or others ; and that this, was done…

This Was an action of assumpsit on the common counts brought by Maguire against Taylor. The defendant Taylor pleaded the general issue, upon which the cause was tried by a juty, ■who rendered a verdict for the plaintiff for $5,275, for which amount judgment was rendered.

1st. That it was error in the court to admit the parties Wood and Todd, makers of the trust ■deed to testify, so as to change the terms of tho deed, and diminish Hayden’s interest in the funds secured thereby, and increase their own. 1 Mo.

By an act of the general assembly of the State of Missouri, approved January 14th, 1845, a State road was established from Weston, in PWte count, to St. Joseph, in Buchanan couuty, the route of which passed over the land of the appellant.

1st. This case, or the rights of the parties, has been adjudicated by the proper tribunal, and if the plaintiff failed or neglected to make his defence in that tribunal, chancery will not relieve unless some good excuse is shown for that failure, 1 Mo. Reps., 470; 10 Mo.

1st. That the circuit court erred in permitting the Said plaintiff torrad in evidence to the jury the said administration bond supposed to have been executed by defendant (as one of the securities therein) upon the proof offered and given by plaintiff of its execution. The verbal testimony of Swearengcn docs not show that Ilix was present when he subscribed Hix’s name to the bond.

1st. It is at least doubtful whether when there are express covenants in a deed, the words “grant, bargain and sell,’’ can have the effect given them by statute. Whether tho making of express covenants does not indicate tho intention of the grantor to make no others.

1st, According to the contract produced in evidence, the judgment should have been credited with the amount allowed Wilkson by the county court, and as the appellees issued execution when the judgment was satisfied, the execution ought to have been quashed. 2d. Although the county court found Wilkson indebted to the estate in the sum of $176 73> yet the record of the settlement shows that the court charged Wilkson with $187 85 which accrued since the date of the orders on…

This was an action commenced in the county court of Franklin county, by William Polk against Elizabeth Farar and her securities, as administratrix of the estate of John S. Farar, deceased, under the provision of the administration law permitting the issuing a scire facias in certain cases. Dr. Polk had presented to the county court for allowance against John S. Farar’s estate, two demands for medical services, and they were allowed at the May term, 1846.

This. was. an action of ejectment brought by James D, Page, who is the eldest son of James M. and Sybill H Page, against David- Burris, for a tract of land containing 80 64 acres, lying in- Washington county. On the trial, the attorneys for the. parties made a case for the opinion of the court.

The lien of a j udgment without revivor expires by the express proviso of the statute at tho end of three years. Seo R. Code 1835 p. 339. The lien of the judgment is a right created by the statute, and cannot bo extended farther than the statute goes. 9 Wendell 158; 5 Cowen 294; 18 Wendell 622.

This is a suit instituted to the use of Benjamin II. Jacobs and Polly Jacobs, against George Hearst, administrator of William Hearst, who was one of the securities of Joseph Funk, executor of the last will and testament of John Horine, deceased.

The administrators of Ferguson non-defendants in error, sued Daniel Potterfiold, Enos Garrett, fcnos Garrett, Jr., and Thomas B. Claggett, on a promissoi-y note made by them to Ferguson, the intestate, for $1,000, dated the 1st July 1840, payable ouo year after date with interest at ten per cent, per annum. The defendant, Potterfield, filed a cognovit, acknowledging the right of the plaintiff to recover.

1st. All the allegations of the complaint were fully proved at the trial. John H. Chambers was the master of the Pride of the West. The plaintiff, at his instance and request, under a contract with him, supplied, furnished and advanced money for the use of the boat, and to be used in and about the business thereof. The plaintiffs do not allege, and therefore were not bound to prove, that the money was actually applied to the use of the boat.

1st. The bond oh which this action was founded conforms to the provisions of the statute under Which it Wak taken, with the exception that one or two of the conditions contained in the act have been omitted in the bond; The omissions, it will be seen by reference to the pet and bond itself diminish the liability of the defendants, and by reason 'of the omissions the bond is more favorable to defendants.

1st. The object of our statute (R. C. frauduleut conveyances see; 5) is not to transfer tho property of one man to another, arbitrarily and without right; but to prevent injury to fair ^urchááers and creditors, by the fraudulent covering up of property. 4 Mass, Rep. 637. 2nd. In jJofrit of law$ tho sfttvo belonged' tó N. Cook, the plaintiff, at the time of the sale from young Gook to' English. 8 Mó. Rep. 522.

APPEAL PROM ST. LOÜIS COURT OF COMMON PLEAS. The facts of this case pvesent three questions for the decision of the court, upon the first two of which turns the error of the decision of the court below in refusing the instruction asked by defendant; and upon the third, the error in refusing to grant a new trial. 1st. It appears by the facts of the case, that by the agreement between Dickenson and the Company, that D, was to have two-thirds of the pipe for his compensation…

The plaintiff in error relies on the 13th section of an iSact regulating conveyances. R. C. 184b >> 221. The spirit and meaning of this act is opposed to the construction given to it by the circuit court, and such construction is opposed to the genius of republics, and the universal practice of this government, as well as to common sense and justice.

STATEMENT of the case. This was an action brought against the defendant under the 4th subdivision of sec. 1 of the revised statutes concerning Boats and Vessels.

<p>A plea in abatément to an indictment, alleging the pendency of another indictment for the same offence, should specifically show that the indictment plead to was the one first found, and that the offensive act charged in each indictment is the same.</p>

This is an action of assumpsit brought by the Switzers vs. Glasgow, on a bill of exchangs for $2050, dated at Fayette, Mo., July 18, 1846, payable at four months in St. Louis, and on the acceptance thereof by Glasgow. The bill was drawn in favor of Isaac Skinner, and appears on the back to have been endorsed by Skinner, In full, to the Switzers.

1st. The evidence in the case docs not show that Stone fever exercised ttie trade and business of a public auctioneer ; and therefore the first instruction given by the St, Louis criminal court on behalf of ihe State is error. 2d. The court erred in the secohd instruction given to the jury, that the crier of the goods at auction is the auctioneer.

1st. The court erred in not granting a change of venue. 2d. The court erred in overruling the motion to restore Evans to possession of the land, from which his tenants other than the defendant were removed. 1st. The statutes authorize and require a change of venue upon proper application being made. R. S. sec. 1 ¡¡ 2 p. 1072. The petition was sufficient, and in the form required by. law.

<p>APPEAL FROM ST. LOUIS CRIMINAL COURT,</p>

<p>Upon an indictment for gelling intoxicating liquors contrary to the statute concerning groceries and dram shops, it is not proper for the State to ask a witness whether ale, porter and beer, are intoxicating liquors within the meaning of the above act.</p>

1. The work was done at the request of Cutting, on the defendant’s boat, and the promise Was made to the plaintiffs in consideration of the delivery of the vessel by plaintiffs to defendant. 2. This case comes within the reason of the rule as established in Bank vs. Benoist % Hackney, 10 Mo. R. 524; Robbins vs; Ayres, Ib. 540. 3. Itis a direct promise to the plaintiffs, and the consideration moved between the plaintiffs and defendant. 4.

<p>APPEAL FROM ST. LOUIS CRIMINAL COURT,</p>

LOUIS COURT OF COMMON PLEAS, STATEMENT of the case. This was an action for money lent to the steam boat Missouri, a boat running between the port of St. Louis in this State, and that of New Orleans in the State of Louisiana.

This was an action on the case brought by the plaintiff against the defendant to recover damages which plaintiff claims he sustained by reason of certain improvements made by the defendant in the grading, paving, &c., of certain public streets in the city of St. Louis, and which improvements caused the overflow of plaintiff’s premises in times of heavy rains, and no adequate means of carrying off said water were provided by the city. Damages were laid at $2000.

1st. The court below erred in deciding that the former suit between Doughty, one of the plaintiffs below, and Corl, for the same identical demand, for which this suit was brought* was not a bar to this action. 2d. The court, upon the facta in this case, erred in deciding that Riggs, Levering &. Doughty, could maintain an action against Corl, on the agreement, as stated in the agreed case, as made between Scoville & Johnson & Corl.

Statement of the case; This was an action of assumpsit. The first count states a balance due by the defendant to Ihc plaintiff, on the sale of the steam boat Tioga.

1st. The unsealed admission of Paul, dated 15th Feb. 1846, referring to the sealed contract, varied from the bill of particulars both as to description and time employed, and no notice was conveyed by the bill of particulars, that any such paper existed. It should have boon excluded» 2 Boss. & Pall 243; 3 Esp. 368; 4 Esp. 7; 1 Taunt. 353; 1 Esp. 452; 2 Sell. 339; 2 Wend. 577.

1. The judgment below is erroneous because it is for a greater sum than is laid in plaintiffs declaration. 2 Blackford 459, Johnson vs. Hawkins; 3 Blackford 133, Phillips vs. Nichols ; U. S. Digest, vol. 2 ; p. 665 ; 2 Howard’s Mo. Rep. 686, Potter vs. Prescott. . 2. Where ajudgment in an action of assumpsit is for a greater sum than the damages laid in the declaration it is error. 1 Mo. Rep. 615, Johnson vs. Robertson; Carr §e. Vs. Edwards, 1 Mo.

The complainants insist they we entitled to a decree, 1st. Because Cassada’s judgment is older than the record of the deed. “The lien of a judgment will hold good against a prior unrecorded deed,” 1st Dana Ky. 168. Hill vs. Paul 8th Mo. Page 479, Reed. vs. Austin’s heirs 10th Mo. #. 722. Frothinghara et al vs. Stacker, 11th Mo. p. 77. This case is stronger than any of those cited, no deed but mere assignment before judgment recovered. 2nd.

The appellant brought suit to the November term 1848 of the St. Louis circuit court in assumpsit, to recover compensation for legal services rendered as an attorney and counsellor; at law for the defendant, at the request of the then mayor of the defendant. The bill of particulars were as follows : The city of St. Louis to C. C. Carroll, Dr. 1846.

STATEMENT? OF THE CASE, This was a suit at law to foreclose a mortgage made to George Morton by McDonald and wife and by them assigned to Alfred Tracy and by Tracy to the plaintiff. On the trial of the cause the plaintiff, proved by B. B. Dayton the assignment of the mortgage by Morton to Tracy and Morton’s endorsement on the six notes secured by the mortgage.

This was an indictment found by the grand jury of St. Louis county against the defendant, Peter Hemmaker, charging him with grand larceny in the county of St. Louis On tho trial of said indictment, the State introduced as a witness one John or Frederick Na-house, who testified that himself and defendant were passengers on board the ship Washington, from Bremen to the United States ; and that they landed at New Orleans, in the State of Louisiana, on the first day of January,…

STATEMENT OÍ1 THE CAs'eI This was an action of indebitatus assumpsit for services and work and labor.

The appellees, plaintiffs in the court below, sued out from the clerks office of the St. Louis court of common pleas five several executions against the appellants, Lee and Martin, one in favor of each of the appellees, and amounting in al! to the sum of three thousand eight hundred and three dollars and fifteen cents ($3803 15.) These five executions were all delivered to the sheriff on the same day as appears by his endorsement on each of them, and were all returnable to…

LOUIS CRIMINAL COURT.' 1st. When a confession is made by a defendant it mustappear that the confession w-as made free and voluntary; and that any confession or admission of guilt, or any fact which,may tend to the proof of it, made by the defendant under inducements held out to him to produce a confession, whether those inducements are of a character to create hope in the mind of the defendant that he may by making such confession escape temporal punishment, or of a…

Tho first point in this case that the appellant was guilty of no contempt of the criminal court, by wilful disobedience of any process or order lawfully issued, by said court.

The time given by statute is for six months and no more. It begins to run from the moment qf time when the goods.are delivered. 9 Mo. 654, Darby vs. St: Bt. Inda. In this case, as to the goods delivered on the 14th Dec. 1847, the statute began to run on that day, and the time expired prior to the day the suit was brought..

Statement of the case. This was an action of ejectment brought by Vito Vit'i against D. W. Dixon, 'foV a house and lot of land in the city of St. Louis. On the trial of the cause it was admitted that at'the timo of the commencement of'the suit', cribed in tho plaintiff’s declaration, with knowledge of plaintiff’s claim of title thereto—holding ’such possession, and claiming under Louis Montany, and tho lien hereinafter mentioned.

LO.I7IS COURT. OF COMMON PLEAS STATEMENT OF THE CASE. Shi? was an action of debt brought by Pritchett against Lackland, upon a judgment ren* dered-,by, the circuit court in-the county of Shelby and State, of Tennessee, on the 2d day of June, 1845.

The plaintiff instituted in the St. Louis court of common picas, his actidn of assumpsit, The first count was on a special agreement,as appears by the declaration, to have been entered into by the parties. To this count there was a general demurrer : this demurrer the court sustained, and defendant below had judgment on the demurrer, the other counts having been withdrawn by plaintiff.

The court below erred insetting aside the order of continuance, and setting the case for trial on tito 18th Dec. There aro only two regular terms of court in Jefferson county—4th Mondays of May and November. Revised statutes page 325 sec. 25. .After the court, on the 28th Nov. ordered a general continuance to the next term, tho cause stood continued to tho 4th Monday ill May 1849, and the jurisdiction had passed from the court, and the cause stood over as any other cause.

<p>APPEAL FROM JEFFERSON CIRCOIT COURT.</p>

The act of the legislature divorcing Bryson and wife was constitutional, and dissolved the? mutual relations between them. The counsel for the appellant never having seen propriety of the decision in the case of State*vs. Fry. But being well satisfied of the legislative power to grant divorces; and believing that the doctrine laid down in that case is not satisfactory to the bar generally, respectfully solicit a review of the grounds on which it was decided.

The words charged to have been published in either count of the declaration are not actionable per se. In every count- they are as folows : (without inuendo.) “R. F. Sass, steam boat agent, this impertinent person withheld from us on Saturday, New Orleans papers of a late date, entrusted to him for this office by the clerk of the Lucy Bertram.

APPEAL FE.01JI ST. LOUIS COURT .OF COMMON PLEAS. The verdict is against tho evidence rendered in said case ; and also, that the evidence does not support the verdict; that al! tho allegations required to be set out in a complaint against a boat, are material allegations, and require strict proof. Revised statutes, act boats and vessels, see. 4 page 182.

S3t, It is submitted that the first count is based upon the statute. R. S. 1068 title trespass. 2d. It concludes, contra formam statnti, and in addition offence is brought within the terms of the statute. Lowe and Forsythe vs. Harrison 8 Mo.

1st. That the article of co-partnership, and the sale of the lots in Marion city, were obtained by fraudulent representations on the part of Muidrow, and were null and void in law. Fraud violates all things.

1st. Chambers having shown possession in himself, when the horse ivas forcibly taken from him by Kelley—must recover unless Kelly could show title in himself. 2d. The evidence showed no title in Kelly, the record of foreign attachment was and is a nullity. Rov. code 1835 p. 77 see. 8, it must appear defendant’s property has been attached, Coboen vs. Douglass 1 Mo. Rop. 239; Anderson vs. Scott 2 Vol. Mo. Rep. p. 15; Manlsby vs. Farr 3 Mo R. 308; 5 Mo.

The judgment should be reversed— 1st, Because the evidence shows no intentional and deliberative fraud practiced by the assignee of the note sued on, upon the appellant.

This was an action of assumpsit brought by Sproule and Agnew agaiust the appellant Walsh. The declaration contained two special counts, and the common money counts: The first count stated that on the 28th July 1840, Sproule and Agnew sued McNulty, Shaw and Mitchell, in the St. Louis cirenit court by attachment, to recover the amount of $3108 87.

' APPEAL EROM GASCONADE CIRCUIT COURT. 1. That there is no equity in the bill, and the demurrer should have been sustained.' If the sale did take place on the 24fh ofSeptember, when the land was advertised for sale on the 23d, and the sheriff in the recitals in his deed states that the sale took place on the 23d, the remedy of Moller was against the sheriff on his bond.

The appellant insists that the court erred in sustaining the demurrer, and that the judgment should be reversed. The instrument is inartificinlly drawn, but it is manifest that by it the defendant is indebted to theplaintiff, and as it may be considered a note within the meaning of the statute, and as such assignable. It appears to be an attempt to combine a note as a mortgage in the same instrument. Both, or either, are assignable by statute.

Husband and wife are one m laws, and all compacts and agreements between them during coverture, are void at law. So of the agreement of Henry in this case, to permit his wife to make profit of his industry and the products of the farm.

1st. The privilege of making a will is tile creature of the statute, and unless the requisitions of the statute are complied with,'the will is without effect. 2d. Our statute requires that the subscribing witnesses to a Will should also attest to the sound-; ness of mind of the testator. Wethinton vs. Wethinton 7 Mo.

This was an action of ejectment brought by the plaintiff in error to recover a lot in the city of St. Louis, fronting about 40 feet on Washington Avenue, between 4th and 5th streets.

A suit can only be commenced in a court of record in this State by filing in the office of the clerk of the court a declaration setting forth the plaintiff’s cause of action. Rev. Stat. chap. 136, art. 1st, sect. 1. Papers in a cause, after being filed, are beyond the control of counsel or parties, and that the possession of them again, in order to alter, amend or re-file, can alone be had by leave of the court.

1st. Tho note of 180 dollars, being a negotiable security, is shown to have been ill blank when it was endorsed and delivered to tho bank ; and the bank having no notice from either the makers or endorser that it was for the accommodation of the makers, or that the proceeds were to be applied to any particular object, had the right to treat and regard the notes as the property of Levy N. the endorser, and to place die proceeds of the discount to tho credit of the said Levy…

L The deed and certificate o'f acknowledgment were insufficient in law to pass the wife’s est:: it would possibly have been good to pass dower, but she had no dower in the lands, and could therefore pass nothing. Revised Code, 1825, vol. 1, page 220, section 12. This act requires that the contents of the deed shall be explained to tbe wife.

1st. That the claimant in a proceeding like this, must make good his whole claim before he can recover costs from the plaintiff in the execution. By the provisions of the 21st section already cited, any person other than a defendant in the execution may claim the property levied upon or any part thereof. It is the business of such claimant to determine at bis peril before he makes bis claim, what his rights are. He may claim the whole of the property levied on, if it be his.

This was an action, of ejectment for a lot of ground in.the city of St. Louis, fronting on the river, brought in the common, pleas, on the day of August, 1848. A judgment was rendered for Norcum, plaintiff below:, in December- last, from which Youse took an appeah The recovery was for a lot of 18 feet inches in front, running back some 137 feet 11 inches.

The Criminal Court has jurisdiction. The terms “crime,” “offense,” and “criminal offense” used in any statute, mean any offense punishable by fine or imprisonment, or both. & 39, art. 9, concerning Crimes and Punishments, Rev. Code, 1845, p. 415. The acts charged are not double in the sense which vitiates an indictment. The acts charged constitute the same offense.

<p>•An unsealed instrument of writing conveying land in trust to secure the payment of a debt, is not sufficiontyter se, to authorize a sale and conveyance of the land by the trustee.</p> <p>An unsealed instrument of writing conveying land in trust to secure the payment of a debt, creates an equitable lion upon the land, which can be enforced by a court of equity.</p>

The defendant in error brought his action under the statute.to recover. $401 90, alleged to be due him on account of stores and supplies furnished the boat.

LOUIS CIRCUIT COURT, Has then the law commissioner jurisdiction of an action of trespass for false Imprisonment 1 We contend that he has not, and refer the court to the act entitled “an act supplementary to an act entitled “ an act respecting the law commissioner,’’ approved February 4th 1847.’’ Seesesstoii acts ’46, ’47 p. 91.

■statement op the case. This was áVí action of assumpsit brought by Samuel Jackson in the St. Louis circuit court against the defendant in error, Margaret Ashmore. Tho declaration contains a special count, and all the common counts with a count stated.

At March term of Saint Louis criminal court, the grand jury of St, Louis county found ai>-_ indictment against Charles Austin for a violation of the act entitled uan act to license and tax billiard tables.5’ ft. C. 1845, 170. The indictment contains two counts. The one charging that the defendant “unlawfully did keep a billiard table without a license continuing in force.

The St. Louis perpetual insurance company obtained a judgment against Benjamin Ames, in the St. Louis courtof common pleas. On this judgment an alias execution was issued, and Curie and Goddin summoned as garnishees, TJio usual interrogatories were filed at the return term, and atthe same term Curie and Goddin filed their answer, in which they say, that they were indebted to John O’Fallon in the sum of three hundred and seventy-five dollars, due lor rent.

1. The transcript of judgment filed in the circuit court was good upon its face. 2. It was not competent for the justice to testify what he did or did not do iu. regard.to matters of which entries should be made upon his docket. If there was no written confession among the files of the case, a subpoena duces tecum to bring those files, would have produced them, -and an inspection exhibited the only proper legal, evidences of- the- non,existence. 1.

1st. Thadthe drawing of the bill of exchange in queslion'by paymaster Walker, was pro tanto-an assignment'of tho fund on'deposit with the bank to the use the payee or'Miy subsequent holder ■'of the said-bill; and that when the hank had notice of the drawing of said bill, and was notified’ that Colburn and Smith wore the lawful holders of said bill, the hank thereupon became liable to Colburn and Smith, or to Smith os surviving partner for the proper application of said fund.…

Appeal frojVi sT. Louis criminal court 1st. Tlic indictment under which the appellant Was tried and ‘convicted, had by virtue of the •operation of the statute lost its legal force and vitality, in consequence of the State having continued his case two terms after the indictment was found* during all of which time the State had time to try him upon such indictment; and that the appellant was at all times ready and willing to be tried.

1. The presentation of the demand .to Pemberton, Ex’r. of Wilcox, in July, 1845, was a legal exhibition of the demand in the meaning of the statute. 4th and 5th sect, of 4th aft. of •administration law of 1845. See also 14th sect, same article. 2. This note, though executed to Anthony Crockett as payee, Was nevertheless the property of William R. Crockett if he advanced the money upon it and received it as security •therefor, and an action will lay upon it to the use of Wm.

In this ease, the-plaintiffs below, appellees brought their action, of ejectment against the-defondant. Both parties claimed through Samuel Hammond as the common sourco of title.

1. The appeal was properly taken on the refusal of the county court to classify the plaintiff’s demand for payment. Rev. Code, 1845, administration, art. 8, sdct. 1. Itis perhaps true that the administrator might have been sued on his bond for not paying the plaintiff’s judgment: but the remedy adopted by the plaintiff of procuring an order classifying his demand and ordering payment, was shorter and better. 2.

LOUIS CIRCUIT COURT The alley was private property, and the city can only pave alleys, streets, &c., which are public, already dedicated to public use, and the attempt to coerce the appellant to pay for the paving his own land, by selling his other land, is an injury which a court of equity should restrain. The city clearly had no power to pave the alley unless it was public. See City Charter laws, 1839, page 164; laws 1841, page 137; laws 1843, page 123.