Volume 13 — Missouri Reports

■ The indictment is in the very words of the statute, and is indeed more specific in its allegations than was necessary. It was sufficient to allege that the defendant followed the practice of medicine as a business, without alleging that he also followed it for a livelihood. The objection that it is alleged that he had no physician’s license is of no weight.

APPEAL Pit 021 CLAY CIRCUIT COURT. The witness, J. H. Long, was competent; the suit having been dismissed as to him, he was no longer a party to the suit. He could not be affected by the judgment further than, if it should be against the defendant, to he liable to the defendant for contribution. The release of defendant discharged him from this liability.

EBBOB TO BOONE CIPCÜIT COTJBT. 1. By tlie terms of the bond sued on, the defendants only bound themselyes for the faithful performance of certain duties, specified to be performed by the said sheriff, Hamilton, in the condition of their said bond, for the term of two years, and until bis successor in office should be elected and qualified ; and that as such securities they have a right to stand upon the very terms of their contract. Miller v. Stuart, 9 Wheat. 680 ; 5 Cond.

1st. Tlie court should liaye sustained a motion to dismiss the case at the September term, 1848. The record does not show, the court found a true hill was returned by the grand jury. It does not show an order of the court receiving the indictment as found a true bill. It does not order the filing of the indictment, and no order appears for process upon it as a matter of record, and the indictment was not filed as a record in court. 2nd.

1. The deed from appellant conveying the land to James H. and Burwell Taylor, and the memorandum thereunder written, signed and sealed by said James H. Taylor, are parts and parcels of the same transaction, and are component parts of one entire contract, and should be construed together in determining upon the meaning and intent of the parties thereto. 3 Bibb, 11, Williams v. Handley; 15 Johns. 569, Dunham v. Deig; Powell on Mortgages, 6, 7 ; 1 Fonb.

This was a bill filed by a husband against his wife, on the 6th of December, 1847, in the Cooper Circuit Court, for a divorce upon the ground of adultery. The adulteries are charged to have been committed in Cooper county on various occasions, in the years 1844 and 1847, with Thomas Saunders, John Saunders and Eli Cuthrell.

1. The only point raised in the court below, and it is the only point in dispute, is whether the judgments by confession, rendered by the justice, on a day different from the day set by him for his law day, is void. The judgments rendered were within the jurisdiction of the justice, and the requisites of the statute being complied with, the justice had the power to render said judgments on any day. Sections 1, 2, art. 6, under head Justices’ Courts, Rev. Stat. of 1845. 8.

This was a complaint under the statute against the steamboat Archer, for the mal-performance of a contract of affreightment, in consequence of which, the plaintiffs’ goods shipped on her, from St. Louis to Wayne City, in Jackson county, were damaged by water through the negligence of the boat.

1. The execution was not returned within sixty days after it issued, and was in defendant’s hands, and defendant is expressly bound. Rev. Stat. title Constable, p. 116, §§ 5, 8. 3. The constable was aware the appellant was assignee of the debt in execution, and liable to lose it by delay. 15 Conn. R. 51. 3. No excuse of want of health is good, for the constable is bound to have deputies to do the duties, if unable himself. The law authorizes deputies. Rev. Stat.

<p>APPEAL FROM HOWARD CIRCUIT COURT.</p> <p>cited: 1. Rey. Code, title Replevin ; Broadwater v. Dame, 10 Mo. R. 277 ; 1 Chitty’s PL 82-3, 138, 187. 2. Rev. Code, title Insane Persons, §§ 13,14, p. 595 ; Story on Bailments, 109 ; 19 Wend. 306, 3 Johns. Cases, 13 ; 3 Watts & Serg. 416 ; 2 Ark. R. 326. 3. The court erred in assessing the damages — this is like all other caseh — the court, we think, has no power to assess the damages against the consent of either party. 9 Mo. R. 163.</p> <p>1. The admendment of the plea and the refusal of the court to render judgment for want of a plea, are matters within the discretion of the Circuit Court, aud there is nothing in the record to show that the decision was improperly exercised, even if these matters are proper subjects for a writ of error. 2. By the express terms of the statute, if the plaintiff fail to prosecute his suit with effect and without delay, the court or jury may assess the value of the property and the damages for the use of it. Rev. Stat. 145, Replevin, § 8. 3. The action in behalf of a lunatic must be in the name of the lunatic and not in the name of the guardian or committee. Coke’s Litt. 135-6; 6 Bac. Abr. Idiots and Lunatics; G. Slielford on Lunatics, 395; Thorn v. Corrard, 2 Siderlin, 124 ; Drury v. Fitch, Hutton’s R. 16 ; Fulcher v. Griffith, Popham’s R. 140 ; ¿ñipe v. Palmer, 2 Wilson, 130 ; Cox v. Dawson, Noyes’ R. 27 ; Lane v. Shemerhorn, 1 Hill (N. Y.) 97 ; Long v. Whidden, 2 N. Hamp. R. 436 ; McKnight v. Aiken, 3 Hill (S. C.) 337; Crane v. Anderson, 3 Dana R. 119, If the present were even the case of the guardianship of a minor, this action could not be sustained in the name of the guardian. Dearman v. Dearman, 5 Ala. R. 202; Sutherland v. Goff, 5 Porter’s R. 508, Fuqua v. Hunt, 1 Ala. R. 197 ; Barnett v. Commonwealth, 4 J. J. Marsh. 389 ; Barnett v. Commonwealth, 5 J. J. Marsh. 286; Longstreet v. Tilton, 1 Cox (N. J.) R. 38.</p>

1. We object to the testimony of John Logsdon given in behalf of tie State, that be knew there were unfriendly feelings existing between Jackson Logsdon and the other three defendants. 2. To the testimony of John Logsdon proving a fist fight between himself and John McMillen, one of the defendants. 3.

On tlie 25tli day of September, 1846, Samuel Martin, administrator of tlie estate of Russell Martin, deceased, filed in the office of the clerk of the Circuit Court of the county of Callaway, his bill in chancery against William R. Martin, his co-administrator and others, defendants in said suit.

<p>APPEAL FROM LAWRENCE CIRCUIT COURT.</p>

Crockett, the appellee, instituted his action of debt in the court of A. Hill, a justice of the peace of Platte county, against the appellant, Ellington, and recovered a judgment against the defendant for the sum of $38 07, together with the costs of the suit, on the 11th day of March, 1818, from which jndgment Ellington appealed to the Circuit Ooiirt on the 30th day of the same month.

This is an action brought in the Randolph Circuit Court, by Cross against Richmond, on a bond for the payment of money, purporting to he executed by the defendant below (Richmond), and one Howell. S. Rose. At the return of the process served upon Richmond, who was alone sued, he put in the ordinary plea under our statute in force at the time, and also the plea of non est factum, supported by his affidavit.

' 1. Tlie contract under which the $600 was paid by plaintiff to the defendant, is void, being in violation of the preemption laws of United States. See act of Congress; '9 Mo. R. 263. The court therefore erred in refusing to give the second and third instructions asked by the plaintiff. 2.

Elizabeth W. Scoggin sued Henry B. Roberts, Robert Wilson, Hiram Rich, William Cunningham and James P. Burnes in trespass, in the Atchison Circuit Court, for taking and converting to their use one trunk and its contents, consisting of about $300. To the declaration the defendants plead the general issue. The plaintiff then filed a petition for discovery.

Elizabeth W. Scoggin sued Henry B. Roberts, Robert Wilson, Hiram Rich, William Cunningham and Samuel .P. Burnet in trespass, in the Atchison circuit court, for takingand converting to their use, one trunk and its contents, consisting of about 300 dollars. To the declaration, the defendants plead the general issue; The plaintiff then filed a petition for discovery.

Ezekiel J. Salmon and John Hurst, who were partners in blacksmithing, carrying on their business under the firm of Hurst & Salmon, on the 28th of November, 1846, commenced suit before a justice of the peace on a blacksmith-ing account against the defendant in error, Robinson, amounting to $34 33.

This was a suit brought by Hughes against the appellant, before a justice of tbe peace, on an account. The appellant filed an offset, in ■which he claimed to have credited Hughes with the amount of his account, in a suit which had been brought by appellant against Hughes, before a justice of tbe peace, and in which appellant bad recovered judgment.

APPEAL EllOJI GREECE CIRCUIT COURT. This is an action of debt by petition and summons brought by the plaintiff upon a promissory note for $160, and was signed by the defendant by the name of “Christy” or Christ. McElhenon. The defendant filed a general demurrer to the petition, which was sustained by the Circuit Court, and the plaintiff brings this suit here by appeal.

The only question presented in this ease is, whether the Circuit Court did right in refusing to admit the defendant’s plea in abatement to be filed ; and in not allowing an issue'to be made upon that plea. The action of the Circuit Court in rejecting the plea in abatement, was right. 1. A defendant cannot take advantage of a mistake in his surname by a plea in abatement. Upon this point, see 2 Hawkins’ PI. Crown, 328; 7 Bao. Abr. 8. ’2.

This was an action by petition in debt founded upon a bond, brought by Harrington against James and John Reed, to the September term of the Jackson Circuit Court, 1847. The defendants below pleaded the general issue, and filed their petition for discovery, charging usury and part payment of the bond. The plaintiff below answered their petition, denying all the allegations in the bill, and the facts were submitted to the court.

This is an indictment against the defendants, and one other person jointly, for permitting gaming in a building of which they had the possession and control. The defendants were found guilty by a jury, and a joint flue of fifty dollars was assessed against them. 1. The verdict and judgment of the court below, are joint against both defendants, when they should have been several and separate against each defendant. 10 Mo. R. 440, State v. Gay et al. 2.

Hunt sued one Mathias Frazier and King, before a justice of the peace in Dade county, on a promissory note given by Frazier as principal, and King as security. The note was for fifty-five dollars, and was due the first of March, 1845. It appeared from the face of the note, and was so proven on the trial, that the note had been altered by erasing the word “May,” and inserting “March.” The summons issued by the justice was served on King.

APPEAL EROyi PLATTE CIKCÜIT COTJKT. Tlie state of tlie case from its commencement to the first trial, with the pleadings and judgment, appear in 10 Mo. R. 305, and the directions given on the points then before the Supreme Court, to regulate the future action of the Circuit Court, where it was remanded.

On the 11th September, 1847, Shroyer and' McClure having open and unsettled accounts respectively against each other, agreed in writing, under their hands and seals, to submit such matters of difference to the arbitration of three persons, upon whose award a judgment of the Circuit Court should be rendered.

‘APPEAL FROM MARION CIRCUIT COURT. In tliis cause Enyart, plaintiff below, commenced his suit in the Marion Circuit Court on a note executed by John W. Burgis, George Holly, John Harris, Jo. Emery & W. C. Smith, to said Enyart for $400, dated on the 6th day of February, 1847, and payable two months after date. The defendants all appeared in the Circuit Court, except Burgis, and plead the general issue.

The only question presented hy the record is, as to the power of the General Assembly of Missouri to pass the laws for the relief of William Holland. See Session acts of 1846-7, p. 804. It is insisted for the plaintiff, that the attempt to pass the law hy the Legislature, was an attempt to exercise judicial power, which, by our Constitution, is confided to the courts.

Tlie only question in the record is, wliat is suck an “absconding or absenting,” under our attachment laws, as will subject a person’s estate to that process. 1. It is sufficient if it be with intent to prevent the ordinary process of law from being served, although it may not have that effect; and if this construction be correct, the plaintiff’s first seven instructions ought to have been given.

Tlie plaintiff in. error, Sarali Sutton, instituted her action of slander in the Olay Circuit Court against the defendant, Smith, in the month of September, 1846. The declaration contained four courts.

ArrEAL PROM CRAWFORD CIRCUIT COURT. This was an action of debt brought by Ridonhour, plaintiff below, against Wm. E. tiawkins, administrator, and Nancy Blackwell, administratrix of Richard Blackwell, deceased. The suit was brought ou a note for $400, given to tue pliintiff by Isaiah King, Thomas I. Veoch and lllchard Blackwell, bearing 10 per cent, interest from 'date, payable on or by tue 1st of March 1830, and daLed 19th November, lc88.

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

Tlic record in. this cause presents the following material fact. In September, 1848, the appellant was the owner of a slayo named Anderson, and the appel-lee was the owner of a slave named Henry. Anderson was by law subject to work on a certain road district in Olay county, of which one Edward M. Samuel was overseer. The said overseer had notified the appellant tQ send his said slave to labor on said road, which he accordingly did, both on Friday and Saturday.

By the 6th section of the act of Congress authorizing the people of Missouri Territory to form a State government, sundry propositions were submitted by Congress to the people of said territory, in convention, for their acceptance or rejection.

The first point which presents itself is as to the legal ability of the plaintiff to maintain a suit for services rendered the estate-during the contract about the validity of the will of Evans. If his freedom commenced from the death of the emancipator, he had a right to sue and recover his legal demands from that day. I know no rule of law better established than that a testator, in reference to everything except real-estate, is presumed .to speak at the time of his death.

1. The court erred iu refusing to give and declare the law of the case to he as moved by plaintiffs in each, all and every of their said instructions, which were rejected by the court. 2. The Circuit Court erred in the said three instructions, voluntarily given by the court. 3. The finding of the count was against law and evidence, and the court erred iu refusing to set aside the non-suit and to grant plaintiffs a new trial of the cause under the circumstances of the case. 1.

1. Dower of the grantor’s widow, is an incumbrance covenanted against by a general warranty deed. 4 Mass. R. 629; 10 Mass. R. 318; 23 Pick. 447. 2. The damages in such case is the amount paid for the dower; ibid, and 7 Johns. R. 358. 3. If the deed was made with fraudulent intent, neither the grantor nor his representatives can. avoid it. 2 Bibb, 91; 4 Bibb, 65. 4. The return of a deed to grantor, or its destruction cannot avoid the deed. 4 Wend. 474. 5.

1. The affidavit for a change of venue must be made by a party to the suit; so is the statute. Even a beneficiary named upon the record, is not a party within the meaning of this statute. 2. There was a variance between the declaration and the bond sued on. The declaration was as upon a bond payable generally, and the bond, given in evidence, was payable without discount or defalcation, and the legal effect of one is different from that of the other. 3.

<p>1. Change of Venue — waiveb.—Informalities in the application for a change of venue are waived by a party appearing during the progress of the cause subsequent to its removal. The voluntary appearance of the party resisting the change, gives the court to which the cause is removed jurisdiction over his person.</p> <p>2. Variance. — The declaration averred that the defendant, on, &e., at, &c., by his writing obligatory, sealed with liis seal, <&c., obligated himself to pay, on, &c., to A. for value received, one thousand dollars, and then ana there delivered the said bond, &c. The bond offered in evidence, in addition to the above, contained the words “without defalcation or discount’ ‘ — Held, that as the declaration did not profess to set out the bond in so many words, but only its substance, the variance between the bond described in the declaration and. the one offered, in evidence, is not material.</p>

The court erred iu giving the plaintiff’s instructions, and also iu refusing the 1st and 3rd instructions moved by appellant ; both these instructions are sustained by the evidence in the cause. Wolf v. Cozzens, 4 Mo. R. 431. 1. The written- assignment of the note to him, conveyed to him the legal property in the same, and such assignment being made before Gates was garnisheed, he did not at the time he was so garnisheed owe the original payee anything. 5 Mo.

Tliis was an action of detinue brought by tlie appellant against the appellee, to remove two negro boys, upon the following state of the case, as shown by the evidence on the trial. The deceased, william M. Taylor, in his lifetime, in York county, Yirginia, owned a negro woman named Louisa. .

Tbe paper read in evidence is not a writ of injunction, nor any evidence of one. Two justices of tbe County Court may grant an injunction, but the papers have to be returned to the clerk of the Circuit Court, who issues the writ. Rev. Stat. 1835, Injunctions, §§ 2, 4, 11, 12, p. 315. It devolves upon the officer justifying under a writ, to show a legal writ. The bill mu't accompany the writ, and can only be served by a legal officer.

1. The evidence is conclusive and uncontradicted, that the plaintiff owned and possessed the tools sued for, and the verdict is clearly against evidence. 2. The testimony admitted by the warrant is in the light of a justification of the trespass ; it is clearly inadmissible. It is entirely void by constitutional provision, being without oath; and a party cannot justify a wrong by evidence made by himself, and make by it a title by his own • oath, if it had been sworn to.

APPEAL EHOM PETTIS CIItCTJIT COURT. 1. There was no express'trust created' in Ramsey & Wasson, by their purchase at the sheriff’s sale, in April, 1847, and the agreement entered into immediately preceding that sale. 2. The court could not properly imply a trust in them, from any misconduct on their part in purchasing the property, at the sale on the 1st Monday in August, 1847, or prior to that sale. 3.

The statement of this action fully appears in 0 Mo. R. 794. After tire decision in that caso, the cause was remanded and re-docketed for trial; and at the August term, 1848, came to trial upon the same state of pleadings. The plaintiffs gave evidence of the sheriff's bond, of the proceedings, judgment, and several executions against defendant.

Tbe facts of tbis case as presented by tbe record and agreed by tbe parties are as follows, to-wit: On the 11th day of August, in the year of our Lord 1843, tbe said Jolm Taylor made and published bis last will and testament, and within a short time thereafter, died. The provisions of his will in the construction of which the several questions involved in the cause arise, are these : “ Section 7.

This was an action of assumpsit, brought by Thomas Pitcher against J. Brown Hovey to the March term of the Jackson Circuit Court, 1848. The declaration contained four special counts and a common count for money paid.

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

The facts iu this case, as they appear from the record, are that the defendant in error caused a notice to he served on the plaintiff in error, that he, Rans-dall, would present to the County Court of Pettis county, on the 1st Monday in December, 1848, for allowance against the estate of Abraham Higgins, deceased, a note and an account, setting out a copy of the note and account in the notice.

This was an action of detinue, for six slaves, to which the defendant pleaded the former statute general issue, applicable to all actions; upon which there was a jury trial. The record contains a formal yerdict and'judgment for the plaintiff.

The plaintiffs in error insist that the court below improperly sustained the demurrer to the petition, for the.following reasons : 1. By the will of Joseph Oowden, his daughter, Louisa, acquired at his death an absolute title in fee simple to one-half of the tract of land mentioned in the petition, of which she was not divested by her subsequent marriage.

1. On tlie.plea of not guilty, tlie plaintiff must in this case, where the words are not in themselves actionable, not only prove the words as laid, blit that they were spoken with reference to testimony given hy plaintiff, before the grand jury of Polk county, in the investigation of a matter cognizable hy them ; and that the testimony so given was material to the determination of the matter in question. 2 Johns. 10 ; 2 Johns. 344; 14 Wend. 120 ; 1 Wend. 475 ; 5 Mo.

This was an action of assumpsit brought in the Henry Circuit Court in April, 1848, by Marvin as administrator of Bates against A. W. Bates upon three several promissory notes bearing date October 10th, 1828, payable, one on the first of January, 1881, the second first of January, 1833, and the third, first of ■January, 1834; for one hundred dollars each. Said notes were executed by the defendant, A. W. Bates, to the plaintiff’s intestate.

<p>Practice is: the Supiieve Court. — where an appellant makes no point for the consideration of the Supreme Court, and the record presents no error, the judgment of the court must necessarily be affirmed.</p>

The court raised the question whether or not the judgment at law was not a bar to the relief now asked in equity; if it is not, the judgment at law, admitting it to he right, only determines that Condit was entitled to have a judgment on the note against Clark, because he did not pay 'off the mortgage. .

1st. That the demand which accrued originally against Henry Chouteau was properly embraced in the hill against the defendants jointly.

ElUtOU TO ST. LOUIS COURT OP COMMON PLEAS, It is alleged that the court below erred as follows: 1st. In overruling the first motion of the plaintiff to set aside the affirmance of the judgment, the reasons therein slated and facts set forth in the affidavit, filed in support of the motion being sufficient and valid in law, the act of Session of 1847, p. 68; is intended only to promote the payment of jurors, and when the payment of the fee required by that act was omitted by…

<p>APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.</p>

<p>APPEAL PROM ST. LOUIS COURT OP COMMON PLEAS.</p>

<p>APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.</p> <p>The single point presented in this caáe, is, did the court below commit error, in affirming the judgment of the justice, because the appellant had failed to file his appeal from the judg-mentof the justice, by neglecting to pay the jury fee of one dollar?</p> <p>Acts of 1847, p. 69, sec. 3, provides “that on a filing of any appeal from a justice of the peace to either of said courts (St. Louis circuit oourtand common pleas) the clerk shall receive from the appellant one dollar asa jury fee.’’</p> <p>The appellant below failed to do this, and the appellee paid the jury fee, filed the appeal, and had the judgment of the justice affirmed.</p> <p>Revised code 1845, p. 671, sec. 23, provides for affirmingthe judgment of thejustice, which applies to cases where the party fails to prosecute his appeal with effect.</p> <p>Rev. code 1845, art. costs, p. 244, sec. 16, provides, “that in all cases when appeal from a justice shall not be prosecuted according to law, the judgment shall be affirmed, and the Costs adjudged accordingly.”</p> <p>The appellant having failed to pay the jury fee of one dollar, his appeal was not filed on the first day of the term, as by law required, and his appeal not having been filed, he failed to prosecute his appeal as by law required, and the judgment of the justice was therefore properly allowed, upon the appellees producing the papers, paying the jury fee, and filing the appeal.</p> <p>The counsel for the appellee, therefore submits thatthere was no error in the proceedings 'of the court below, and its judgment affirmed.</p> <p>The case of Hardison vs. Cumberland Valley, exactly covers this case, and settles the point involved in it of the authority of the court of comman pleas, to affirm the judgment for want of payment of the jury fee.</p>

The declaration set out a promissory note made by James S. Carter and Samuel H. Carter, and A. Grantham in negotiable form and payable to Z. T. Wood-folk and E. W. Stephenson, and by them indorsed to the defendants, and by the defendants indorsed to the plaintiff, demand and refusal of payment at the maturity of the note and notice to the defendants.

1. Evidence of general bad character of a witness is competent, to impeach him. The court there, erred in refusing to allow the inquiry to be made of Ferguson a witness of the State. -1 Hill, 251; 2 Cowen & Hill, 767 ; Wike v. Lightner, 11 Serg. & Rawle, 190 ; Evans v. Smith, 5 Monroe, 863. 2. Evidence of the bad character of a witness for. chastity, is also admissible in impeachment of such witness. Evans v. Smith, 5 Monroe, 363. 3.

LOUIS CIKCU1T COURT. The plaintiffs in error being building- mechanics in the City of St. Louis, and having built a stone warehouse for Chambers, the defendant in error, filed their lien in the office of the St. Louis Circuit Court, and on the 28th day of January, 184-7, procured a scire facias to'issue against Chambers on the lien as filed.

LOUIS COURT 03? COMMON PLEAS. 1. The verdict of the jury was flatly against the instructions of the court. 3. That the simple fact that in 1887 the wife was in the habit of doing business for the husband in his absence as his agent, though, it may sustain his liability for a loan made at that time, is no evidence whatever of authority to the wife, eight years afterwards, to make a new promise to take a debt; which is barred, out of the statute of Limitations.

<p>Constitjtiokal Law — Joton’s Rees. — That provision, in the third section of an act of the General Assembly, entitled “An act to promote the Payment of Jurors in St. Louis county,” approved January 2D, 1847, which requires that a jury fee shall be taxed as part of the costs of every judgment rendered against a defendant in a criminal proceeding, is constitutional.</p>

<p>1. Ckiminal Raw — Indictment—Selling Liquok. — An indictment which .alleges that the defendant sold liquors ‘ 'to persons to the grand jurors unknown, ” is supported hy the testimony of a person who swears that the defendant sold liquor to him; unless it further appears from the evidence that the grand jury knefy the witness to hayo been, in fact, the-unknown person alluded in the indictment.</p> <p>2. Same — Pkincipal and Agent. — A person indicted for selling liquors without license, cannot excuse himself upon the ground that at the time he did the act he was in the employ of another person, and sold it as the agent of that person.</p>

The appellant, on 8th of October, 1842, filed in the Monroe Circuit Court, bis bill in chancery against the appellees, and charged in substance as follows : That on the 12th of March, 1841, he had recovered a judgment in the Monroe Circuit.against William Haines for the sum of $695 61 with costs. That on the 8th of April, 1842, judgments were entered before a justice of the peace of the county, in favor of various creditors of Haines, to the amount of $420.

1st. The Circuit Court erred in refusing to exclude from the consideration of the jury, the covenant introduced in evi-deuce winch differs in substance, and essentially from the cpvenant declared on. 2nd. The court erred in refusing to.permit the defendant to prove the-admission of the plaintiff, “ that he could not make a.title to the tract of land' sold, even if the defendant paid him the purchase-money when due.

This was an action of covenant in the St. Louis Common Pleas, brought in August, A. D. 1848, by the St. Charles College against William Finney, on his alleged sealed note, which is in the following words, viz. : “$1,000. We hereby bind ourselves to pay to the curators of St. Charles College, one thousand dollars at the end of ten years from this dale without defalcation, with interest to be paid semi-annually from date, at the rate of six per cent, per annum.

One Lesperance was tbe proprietor of land embraced in what is called Les-perance’s addition. He gave a deed of trust of tbe same to secure to Chouteau a debt for more than $10,000. Subsequently, and previous to 1841, he conveyed several lots to Alexander, covered by tbe deed of trust. 20th August, 1841, Alexander conveyed to Schreiber three of these lots, numbered 37, 38 and 39.

This was an action of assumpsit upon a promissory note brought by the appellee as holder against the appellant as first indorser of a note purporting' to have been made by George Breen in favor of Richard Tumilty as payee, and to have been indorsed by him to Bernard Dillon, and by Dillon to tho bank. The defendant below filed the statute plea, and also on the 17tb March, 1848, an affidavit stating the transaction, and denying the execution of the instrument.

This was an action of assumpsit for use and occupation of a mill at Rush-yille, in the State of Illinois, brought by Moffitt against VonPhul & McGill, in the Circuit Court for the county of St. Louis, for the November term, A. D. 1844, thereof. On the trial, Moffitt proved that one A. R. Skidmore acted as agent for VonPhul & McGill in leasing and managing said mill; that the mill was first leased from October 1, A. D. 1841, to January 1,1842.

This was an action of trover brought by Watkins against J. & W. Einney for a boiler and fixtures, one hydraulic press with pumps complete, and other-property (all of which was the implements used in a candle factory in the manufacture of candles, and some materials of which candles were to be made). Plea, not guilty. At the trial, the plaintiff offered in evidence a paper purporting to be a bill of sale by Wm.

cited : Tuck. Com. 438, 446-7, 506 ; 4 Dana, 359, 368; 4 Mo. R. 63, 70 ; 1 Littell, 353; 4 Monroe, 196 ; 3 J. J. Marsh. 180, 484 ; Barton’s Eq. 194-5-6-7-8-9 ; 1 Harrison’s Ch. 430, 489, 440. 1st. It will he here insisted that the respondent, Elijah McLean, is a bona fide purchaser of the land in issue. 3nd.

Fairfield sued Love in. trespass to the April term, 1846, of the St. Louis Circuit Court, and got judgment by default, on which damages were assessed at the same term for $800, and execution issued therefor. The execution was returned “satisfied in full,” by the sheriff acting under instructions from the plaintiff, Fairfield. This return was made October 28, 1846, the regular return day of said wri* being the third Monday of November of that year.

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

This was a proceeding by Allen for the proving up and obtaining an allow anee in the Probate Court for the county of St. .Louis against the estate o George Anson, deceased. There was judgment for Allen in the Probate Court from which Garesche appealed to the Circuit Court for the county of St. Louis.

This was an action of detinue brought by tlie plaintiffs to recover a negro boy. To this the defendant filed two pleas. 1st. Non-detinue. 2nd. That the negro boy was not the property of the plaintiffs.

The representations of Walsh, at the time of the sale, that the slave was sound and healthy, and nothing ailed him hut a diarrhoea, got from change of water, was relied on, and the sale made on the faith of it. It was, therefore, a warranty, or in nature of it, and if untrue, the action for damages would lie without necessity of alleging or proving a scienter, or fraud. 2 Iredell 477; 4 Iredell 238; 1 Smith’s leading cases, see note to case of Candor vs.

This was an action of indebitatus assumpsit brought in the St. Louis Court of Common Pleas by Powell against Buckley, to recover for carpenters and joiners work'done on defendant’s house. The declaration contained the common counts for work and labor, &c., and the case was tried by a jury in the court below on the general issue.

This was an action of indibitatns assumpsit brought in the St. Louis court of common pleas by Powell vs. Buckley, to recover for carpenters and joiners work done on the defendant’s house. The declaration contained the common counts for work and labor, &c., and the case was Died by a jury in the court below on the general issue.

APPEAL EKCni ST. FRANCOIS CIRCUIT COURT. 1. The failure to insert the names of the securities in the body of the bond, does not vitiate the bond. Hx-paHe Eulton, 7 Cowen, 485 ; Smith v. Crocker et al. 5 Mass. R. 538 ; Dobson v. Keys, Cro. Jac. 261; 0 Mart. La. 11. 497; BJakey y. Blakey, 2 Dana, 460; Bartley & Eerguson y. Yales, 2 Hen. & Mun. 398 ; Adams v. Wilson, 10 Mo. R. 341; Tevis v. Hughes, 10 Mo. R. 380 ; 1 Tuck. Com. 275 ; Crawford v. Janett’s Adm’r, 2 Leigh, 630. 2.

Hammond & Judd, brought an action of ejectment against Barnum, fora lot in St. Louis. The suit was tried by a jury on the general issue. On the trial the plaintiffs read in evidence a record of a lien filed in the clerk’s office of St. Louis county, in favor of the plaintiffs, against one Nathan L. Milburn, and covering the property in question. The lien was filed 10th July, 1847, and arose out of an account'for building materials.

Odell & Frink, merchants of New York, haying sold goods to Isaac Griffin, a merchant of Belleville, Illinois, took his note (not negotiable) for $382 53-100ths, payable to their order, at the Bank of the State of Missouri at St. Louis, seven months after date, and dated 20th August, 1841. It fell due 20th March, 1848.

This was an action of ejectment. The plaintiff below declared for about fourteen feet of ground lying on the east side of Main street, in St. Louis, bounded on the south by the southern line of Glamorgan’s survey,” and north by a lot formerly of James McGunnegle, deceased.

1st. That the court erred in permitting the transcript of the record of the Court of Pleas and Quarter Sessions of Eranklin county, Tennessee, to be read in evidence. 2nd. That the transcript of the record of the. Supreme Court of Tennessee was improperly excluded. A record of a judgment is always evidence between parties and privies. The suit in Tennessee was brought by S. Keeton’s heirs against Wm. Keeton and others.

This was an action of assumpsit, brought for the recovery of freight money. At the trial below, the plaintiff showed that in November, 1845, the appellants, Smith and Carter, shipped on the steamboat Reveille, of which plaintiff was the master, at the port of Galena, 2,003 pigs of lead, weighing 188,343 pounds.

Tlie defendants in error sued out an attachment at the February term, 1849, of the Court of Common Pleas, against Aug. J. Ambler and Alfred A. Heath, partners under the name of Ambler & Heath, dealing in liquors, groceries, &c., on the alleged ground that the defendants in the attachment had made a fraudulent assignment of their property, &c., so as to hinder and delay their creditors, &c. All the property in question, which consisted mainly of liquors, &c., was seized under…

EKTtOB Tp ST. LOUIS COTJBT OF COMMON PLEAS. This was an action of ejectment brought by the plaintiff against the defendants in error in the St. Louis Court of Common Pleas, to recover a lot of ground in the city of St. Louis, within United States survey No. 671, for Pierre Chouteau. A judgment having been rendered in favor of the defendants, the plaintiff prosecutes his appeal.

1st. The ceurt should have continued the case over for a few days, on the affidavit of the defendant, for evidence material to him in the defense. It was a question of sound discretion to he exercised for the promotion of justice, and in a spirit of mercy. The affidavit makes a sufficient case, and the decision of the court was oppressive in forcing the trial under the circumstances. 2nd. Malice must be proved; it cannot he presumed in the case of murder.

The plaintiff in error was also complainant in the court below, and filed his bill alleging in substance that one Amos Lovering, in May, 1845, conveyed to complainant a valuable tract of land in St. Louis county, containing over 600 acres.

<p>1. Change oe Venue — Notice.—Upon an application for a change of venue in a criminal oase, reasonable notice must he given previously to the application; the reasonableness of the notice must be construed with reference to the existing parties.</p> <p>2. Same. — The general law providing for a change of venue in criminal cases, does not apply to causes pending against persons undergoing sentence of imprisonment in the penitentiary .</p>

<p>Practice in the Supreme Court — Where no hill of exceptions is preserved, and where the record does not show any exceptions taken by the plaintiff in error to the opinions or decisions of the Circuit Court upon motions made by him, the judgment must be affirmed.</p>

1. The judgment of the circuit court should be affirmed, because there is no bill of exceptions in the case. Stale vs. Fortune 2. The indictment is good. It alleges in clear and explicit language the partial destruction of a public school house, “built for the use of schools.” This is sufficient to show that it was not his own.

This was an indictment for larceny, and upon the trial it appeared that the colts charged to have been stolen, came to the residence of the appellant without his knowledge, and when he was from home, and remained there some time at his stallion’s stable, and the appellant’s possession was not only not felonious, originally, but lawful; having taken them up as ’strays.

Booth, commenced this action in the Howard Circuit Court against Fallen-stein, charging him with having spoken the slanderous words charged in the following count, to-wit : “ For that the said defendant, wickedly intending to injure the plaintiff heretofore, to-wit: on the first day of May, 1849, in a certain discourse which he then had of and concerning the plaintiff, did in. the presence and hearing of divers persons, maliciously and falsely speak and publish of and…

These five cases were actions of ejectment brought in the Circuit Court of Cooper county by the plaintiffs in error against the respective defendants. They are included iu one statement, as the case on the part of the plaintiffs is the same in all, and on the part of the defendants there is no material difference in the defenses set up iu each ease.

Tliis action was commenced before a justice of the peace by Magee, plaintiff, against Humphreys, defendant, on the 2nd day of December, 1847, for the sum of $68 66, for so much money placed in the hands of Humphreys by Magee, as a stakeholder, to be held to abide the result of a horse-race then about (o be run by said Magee and one John Cane. On the trial before the justice of the peace, Magee obtained judgment for $46 06.

This was an action of debt against James S. Rollins and others, the official sureties of P. A. Hamilton, as sheriff of Boone county, upon his official bond of the 7th of August, 1840, and was tried in August, 1849, upon the statute general issue of 1845. The declaration contained three counts.

This was an action on the case by. Mrs. Hughes against Skinner, Shepherd and Baker for an injury to her slave that occasioned his death, and was tried at the March term, 1850, of the Platte Circuit Court.

The court must affirm the judgment of the Circuit Court, because there was no motion for a new trial filed, to enable the Circuit Court to correct the errors committed and complained of, if any. Eloersh v. Bank of Mo. 10 Mo. R. 515 ; Rhodes v. White, 11 Mo. R. 623 ; 11 Mo. R. 358, Watson v. Pierce.

Crockett Harrison sued Reuben M. Renfro in the Callaway Circuit Court to the October term, 1844, by petition in debt, and attached two slaves in the possession of Mrs. Renfro, as the property of the defendant, and had judgment by default, on publication of notice at April term, 1846.

The plaintiff in error, at the September term of the Circuit Court of Cooper county, obtained a judgment against James L. Collins and David Workman for the sum of $1,273 22, for his debt and damages and for costs, and to obtain satisfaction of his judgment he caused an execution to be issued upon it, and placed the same in the hands of the sheriff of Cooper county to be executed.

<p>APPEAL EROM LAEAYETTE CIRCUIT COURT.</p>

<p>APPEAL ER01I CLINTON CIRCUIT COURT.</p>

1. The evidence in the case-fully warrants the verdict of the jury. 2. The instructions given to the jury by the court, at the instance of the State, contained a correct exposition of the-law applicable to the facts. 8. The instruction asked by the defendant and refused does not assert a correct legal principle. 4. The record offered by the defendant, to establish a former conviction, was insufficient, of itself, for that purpose.

1. The first question presented for tho decision of lie court is, whether this proceeding by motion is barred by tbe 8tli section, 7th article, Practice at Law, p. 831. Tlie appearance of an infant by attorney is more than an irregularity — it is error in fact. This section only bars proceedings by motion for irregularity.

1. This court will not reverse the judgment of the Circuit Court, because he granted a continuance to the plaintiff, at the March term, 1847. The oral affidavit made by consent on the last day of the term is not set forth. This court cannot undertake.to say that the court committed, such error, if any, in this, as would justify a reversal of the final judgment. The cause, by consent, or at least without objection, was postponed until it was too late in tlio term to try it.

The plaintiff in error instituted a suit before a justice of the peace, in Randolph county, against the defendants, and obtained a judgment for about four dollars, from which the defendants took an appeal to the Circuit Court. In the Circuit Court the defendants obtained a judgment, and the plaintiff has brought the case here by writ of error.

1. The title to the §100 collected by the sheriff on the execution in favor of Spicer, on the same day the judgment was assigned to Shephard, even assuming that the collection was made before the assignment, did not vest in Spicer, so as to subject it to a levy under an execution against him. Turner v. Fendall, 1 Cranch, 117 ; First v. Miller, 4 Bibb, 311 ; Jones v. Ramsey, 2 Richardson’s R. 4.

The plaintiff’s intestate instituted his action, in the Chariton Circuit Court, against the defendant, to recover from him one half of a debt the plaintiff had paid to the Branch Bank of Missouri, at Payette, for the payment of which the plaintiff and defendant were securities of one Thomas Chil-ton, who was the principal debtor to the bank.

This is a civil action brought by the defendants in error, in the Boone Circuit Court, against the plaintiff in error, and in which judgment was rendered at the last February term of the court.

1. The judgment of the Circuit Court ought to be reversed, because there was no proof of the assignment of the note, sued upon, to Crawford. The deposition of Eleanor Crawford should have been rejected. The identity of the note sued on, and the one assigned to Crawford, the plaintiff, was not sufficiently proven. In fact, there was no proof ofr the assignment. 7 Mo. R. 138. 3.

1. The testimony of D. C. Garth does substantially support the declaration, and the proof in relation to Collier paying-the boat $3 50 per hogshead for shipping the tobacco in the -warehouse at Glasgow, was a contract independent of the contract declared on. See 1 Chitty, 338, 344.' 3.

The court below erred in giving judgment against plaintiff npon the demurrer. There are some special causes assigned in said demurrer, but as there is but one cause set out in the demurrer, permitted hy the act reforming the Practice at Law, approved 3i'ebruary24,1849,1 will notice that alone, which is, the plaintiff has no legal capacity to sue. The objection is made for two reasons : 1.

1. The final decree and all other orders, decrees and proceedings had and done in the Circuit Court anterior thereto, are necessarily presented and proper to be reviewed, considered and determined by this court upon this writ of error. See 17 Johns. 559, Jacques v. Methodist Episcopal Church ; 1 Cowen, 703, Atkinson v.- Marks; 1 Johns. Cases, 498, Le Guen v. Governeur and Kemble; 3 Cowen, 308, Wilson v. Troup. 3.

1. The court erred in excluding the plaintiff’s title, derived from the sheriff’s sale of July, 1837. 3. The court erred in excluding the plaintiff’s title, derived from Nowlin’s deed of July, 1836. 1 Greenl. Ev. § 301, and notes ; 3 Phil. Ev. 1370, Cowen & Hill’s Notes, note 943; Gates v. Lewis, 7 Yt. R. 511; Loomis v. Jackson, 19 Johns. 449 ; Worthington v. Hylyer, 4 Mass. R. 196 ; Blaque v. Gould, Gro.

This cause was commenced in the Callaway Circuit Court hy plaintiff, by petition founded on a promissory note for $350, dated August 35th, 1848, upon twelve months’ time, payable to Benjamin E. Watkins, and by him assigned to plaintiff.

1. Tlio court erred in not permitting the defendant, Gist, to prove the amount of costs and expenses paid by her in recovering the money which she held as trustee. 3. The court ought to have required S. P. Hunter to testify as a witness when called upon by the defendants. 3. The court ought to have heard the defendants’ motion filed, to suppress the deposition of Butler. 4. The decree of the court is palpably against the rights of Mary Gist.

Declaration filed August 12,1847, summons returnable September term, 184?. The obligation declared on was dated 8th September, 1846. In this contract it was agreed that Maguire should build the hull of a steamboat, certainly described, and finish it ready for the engines by the 1st February, 1847, for which certain payments were to be made, amounting in the whole to $9,000.

This was a demand under the statute. The plaintiffs alleged that they were owners of the steamboat Ohio, and that on the 5th day of April, 1845, as the steamboat Ohio was ascending the Mississippi riyer, and had got nearly opposite Grafton, a town in Illinois, on said river, the steamboat Lynx was through the carelessness, remissness and negligence of her officers and crew, propelled against the steamboat Ohio, which last mentioned boat was thereby damaged to the amount of…

Watkins sued Bircher on a covenant of seizen of an indefeasible estate in fee simple of a tract of land in Illinois. The covenant is contained in a deed of conveyance of said land. The deed bears date February 14,1842, and states a consideration of $600, on 17th February, 1840, and the covenant unlike most covenants of seizen is not in the present tense, but the past — that Bircher was seized, &c., on the 17th of February, 1840.

First ruling by the court, which was objected to, was as follows : “If the property saved from the wreck was the property of King & Fisher, at the time it was saved, the plaintiff cannot recover.” This statement of the law was erroneous. The effect of an abandonment, if justified by the facts and by the terms of the policy, was to vest the property in the. office, by retroaction, from the time of the loss. Coolidge v. Glo. Mas. Ins. Co., 15 Mass. 846 ; 2 Phil.

This action was brought on a covenant of seizen in a deed, and the breach assigned was, that defendant was not seized of all the land ho professed to convey. Plea under Statute of 1847.

It is a general rule of law, that asbetween the immediate or original parties to a bill of exchange, the total or partial want or failure of consideration, or the illegality of consideration may be insisted upon as a defense or bar to an action. It may be set up by the drawer against the payee, by the payee against his indorser, and by the acceptor against the drawer. Story on Pills, 2nd cd., p. 217, ch. G, § 187.

The plaintiff had a right of action, cither of assumpsit or trespass, under the old system. It matters not which of these forms of action be judged most appropriate. It is submitted that either of them could be sustained by the evidence, but if either one of them be so, the the petition is good.

The property in question belonging to Spain at the time of arrest was by lien bound for the payment of the costs of the prosecution by Spain. And Spain being convicted, he levied upon the property and money to satisfy the execution according to the 30th section of the 8th article cf Practice and Procee’dings in Criminal Cases. Rev. Stat. 1845, p. 887, § 30.

This was an action under the statute entitled an act concerning Boats and Vessels, brought to the September term, 1847, of the St. Louis Court of Common Pleas, by the plaintiff against the Steamboat Lehigh, for the mal-performance of a contract of affreightment. A warrant issued and the boat was seized by the sheriff of St. Louis county, and afterwards discharged by the sheriff on bond being given under the 9th section of the above mentioned act.

Whittelsey, for Plaintiff. 1st. That this court will sometimes review the discretion of the courts below, see case of Stout v. O. & T. Lewis, 11 Mo. R. 438. In New York it is the constant habit to set aside judgments by default at the same time, upon affidavits showing meritorious defense and due diligence, or an excuse for the want of it-.

1st. Is the judgment required by the replevin act, in case the plaintiff fails to prosecute his suit with effect and without delay, a final judgment? It is insisted that it is, and made so by the very terms of the act. Rev. Stat. 1845, ch. 45, §§ 8, 9 ; Smith v. Winston, 10 Mo. R. 299, 301. 2nd. Our statute is almost precisely like that of tire 17th Car. II, cli. 7, which, in case of non-suit after avowery made for rent in arrear, makes the judgment final. 6 Bac.

Edward Shuman brought suit by petition in debt, in the St. Louis Court of Common Pleas, against Joseph Hatry, and sued out an attachment thereon. At the return term, and within the first three days of the term, the defendant filed a plea in abatement, and also, but afterwards, and on the same day, filed a plea to the merits. The plaintiff moved to strike out the plea in abatement, for the reason that the defendant had pleaded to the merits of the action.

Tlie defendants were owners of the steamboat Pioneer in March, 1849, and the plaintiffs were owners of a warehouse, standing at Beardstown, on the ■bank of the Illinois river. The plaintiffs sued defendants in case alleging that through the negligence, carelessness and fault of the defendants’ servants, managing said boat unskillfully, the boat was run against the said warehouse, and prostrated its walls, and removed the building from its foundation, and greatly damaged it.

A suit in partition wherein above plaintiffs in error and John O’Fallon and others were petitioners, and Martin Tayon and others defendants, was commenced in the St. Louis Circuit Court, 3rd September, 1840. • On the 26th April, 1847, an order of sale was made by the court, which was renewed on the 16th March, 1848.

There was error in overruling the motion to set aside the default. For the case shows that the defendants had a merito.rious defense, and the default arose from the change of the head officer of the corporation between the day of the service of the summons and its return.

<p>1. Action — Slaves.—The owner of a slave instituted a suit against the plaintiff as par-owner of a steamboat, and recovered damages against him for the loss of his slave while upon the boat employed ascook. Plaintiff now su es defendants as j oint owners witlihim at the time of the -loss for an amount of the judgment against him equal to their interest in the boat — HeZtf, that to entitle him to recover, it; devolves upon him to make out in this case a state of facts which would entitle the owner of the slave in the first instance to a judgment against the owners of the boat.</p> <p>2. CONTRACTS. — Defendants purchased plaintiff's interest in a steamboat, and agreed with him amongst other things {‘to pay all the claims against said boat, and hold (plaintiff) harmless from all such claims'' —Held, that the claims alluded to are only the debts and liabilities due by the boat, by virtue of her contracts, and not mere rights of action against the officers or owners thereof for supposed neglect of duty as bailees.</p>

1. It is contended that the defendant is liable to the plaintiff in the sum of $500, paid at Louisville for the boat, the boat proving unsea worthy and being taken back. 3. The defendant is liable for damages on account of breach of contract in the sale of one-fourth of the boat to plaintiff after his purchase from Pine. In support of the last point see the case of Byrd v. Pox, 8 Mo. R. 574.

The court erred in deciding that the plaintiff was liable to the defendants as co-partner with Irvin. To constitute a co-partnership there must be a liability to share both profits and losses, of which there is not the-slightest evidence in this case. 1 Wend. 463, Compton v. McNair ; Story on Partn. § 30, p. 46 ; 14 Pick. 193, Turner v. Bissell, 3 Greenl. Ev. 394, 395, 396. 1.

This steamboat was sold by order of court, and all the lien claims were paid off, leaving a net surplus for distribution to the legal and proper claimants. Langstaff & Hulme, Philip Rock and Charles W. Herbert, severally filed claims against said surplus.

This was an agreed case submitted to the court in writing, by Philip Rock, D. Ward and Langstaff & Hulme with reservation of right of appeal. The Globe was attached in this court for sundry lien claims, and thereupon sold by order : and at the sale bought by Langstaff & Hulme for $5,000, and the money paid into court therefor. A surplus of that fund-remains after the payment of all the claims proved.

Interpleader is a special process given by statute in certain cases of tlte attachment of the property of debtors, to abide final judgment. Rev. Stat., Attachments, art. 1, §§ 39, 40. This suit is under another statute — that regulating Boats and Vessels, ch. 20, § 3, &c., 11, &c., in which no process of interpleader is allowed. The process of interpleader is limited to proceedings under the Attachment act, of which it is part.

LOUIS COURT OÉ COMMON PLEAS. This was an appeal from a justice of the peace. When the case was called for trial, there was no counsel appeared for the appellants in the Court of Common Pleas, and .the said court affirmed the judgment below. Amotion was made for a new trial, accompanied by affidavits showing that the counsel employed liad left. St. Louis for Jefferson City to attend the sitting of the Supreme Court, hut that-one of them had employed P. 0.

This was an ejectment brought in St. Louis Court of Common Pleas by the defendants in error against Mary Pembridge for a lot in St. Louis, fronting 30 feet on Broadway by 100 feet deep; the writ was served on the defendant below on the eighth day of August, 1849, and returnable to the 'September term of the court.

Tlie testimony in this cause haying been concluded, the only remaining question arises upon the record and the instructions and action of the court thereon.

Wesley Tolivar, the appellee, sued Lubke & Penningrot, and attached the steamboat Beardstown, as their property. William Steinman, the appellant, interpleads and claims the boat as his property at the time the attachment issued. Evidence a note for $1,200 executed to him by Lubke & Penningrot on the 1st December, 1847. 2. Conveyance of boat to trustee on the 18th March, 1848, to secure said note. 3.

This is an appeal by Walker from a judgment rendered by the St. Louis Circuit Court.

This was an action of indebitatus assumpsit brought by appellee against the appellants to recover the money alleged to have been had received by the defendants below to the use of plaintiff. At the trial, the partnership of defendants was admitted.

On the 35th August, 1847, the appellee, Charless, commenced an action of assumpsit against William T. Smith, surviving partner of Colburn & Smith, in the St. Louis Court of Common Pleas, by process of attachment returnable to the succeeding term for that year. The affidavit for the attachment states that the defendant was indebted unto the plaintiff in the sum' of $883 70, with interest at the rate of ten per cent, from the 15th of March, 1847. .

This was an action of ejectment, brought by Page against Swartz, to recover a lot lying within the St. Louis commons, and also within the confirmation of James Mackay or his legal representatives by the act of 4th July, 1886.

1. The Circuit Court errecl in sustaining the demurrer of the plaintiffs below to the fifth plea of the defendant below. 2 Chitty’s PI. 438 ; 1 Saund. 92 and note 3 ; 1 Mo. R. 202, McKnight v. Taylor; 1 Starkie’s Ev. 221, 223, also 222, and notes, also 219 and notes. 2. The Circuit Court erred in permitting to be read to the jury as evidence a paper purporting to be the will of Eerguson Haile, together with the papers accompanying it.

This was an action of assumpsit by the appellees against the appellant. Com-vmon counts for money had and received, and for money paid, laid out and (expended. Plea the general issue provided by Statute of 1847.