Volume 14 — Missouri Reports

Louis Circuit Court. STATEMENT OF THE CASE. These two cases were tried together in the court below, being submitted to the same jury os the same day on the same evidence; and the court having instructed the jury as hereinafter stated, the plaintiffs submitted to a non-suit in each case, moved to set the same aside for reasons, and on the refusal of the court so to do, appealed in each cause to this court.

Louis Court of Common Pleas. STATEMENT OP THE CASE. This was an action Upon a contract for the delivery of 3000 bushels of barley by respondent to appellants : the contract was to the following effect, viz : John L. Coates agrees to deliver at St. Louis, Mo., to George Pegram if Co., 3000 bushels prime barley, within the space of 30 days from October 20th, 1849 — they, George Pegram & Co., agreeing to pay for said barley one dollar per bushel.

Louis Circuit Court. The plaintiff contends that the evidence does not prove any acts committed fay him that amount to forcible entry and detainer, even though Cathcart should have entered forcibly and then turned out Waiter by force.

Louis Court of Common Pleas. STATEMENT OP THE CASE. This was a petition by appellants',, charging that on the 13th day of August, 1846, and' oís other days in the said month, and in the months of September, October, November and December, the defendant injured the plaintiff as follows: that plaintiff was seized of a lot of land and buildings thereon, known as the block No. 175, fronting on an alley in the city, between 9th and 10th streets.

Louis Circuit Court. I. Can one partner sue another at law for an indebtedness arising from the partnership' transactions, before the settlement of the partnership concerns, the payment of the debts and the striking of a balance? II. tinder the articles of co-partnership, does this case come within the rule of law above stated? In support of the first proposition, see Strohert vs. Knox, 5 Mo. K., 112, Murray vs. Bo-gert, 14 Jfc R», 318; 2 Conn. R,, 425; 1 Wend. R., 532.

Louis Court of Common Pleas. STATEMENT OP THE CASE. On the 30th September, 1848, John W. Keiser, Benj.

Louis Circuit Court. STATEMENT OP THE CASE. At the trial of the cause plaintiff produced and read in evidence the record of Flint & Co. vs. S. B. Nathaniel Hale. This record was of a case commenced against the S. B. N Hale by Flint & Co., under our statute respecting boats and vessels. It was the first case against the S. B. N. H., and underthe process in that case, the sheriff seized and sold the hull, tackle and furniture of said boat to the plaintiff.

The plaintiff’s title is a grant from the Spanish government for 10,000 arpents confirmed by the act of 4th July, 1836, to Charles Fremon Delauriere and Lewis Labeaume. Theie is no question but that the plaintiff has all the title of ihe grantee. The claim was duly presented to the recorder of land titles, prior to 1st July, 1808, and was therefore within the provisions of the act of congress reserving Spanish grants from sale.

Louis Circuit Court. By changing matters ¡he assured changed the risks insured against, and so, the underw: iters were discharged. It was a deviation. Phillips on Insurance, 483, 484, 485. It is impossible to say whether the change of masters occasioned or contributed to the loS3, but that is so in almost every case of deviation.

Charles Circuit Court. 1st. The circuit court ought to have put the plaintiff to his election between his creditory breaches Cus moved by defendants!. 2nd. The commission of Fulkerson, as collector, was not lawful testimony, and ought to have been rejected. 3rd. The bond ought not to have been admitted in evidence, when objected to for variance under the plea of non estjactwm.

Louis Court of Common Pleas. STATEMENT OF THE CASE. Voorhees, Miller & Co., appellees, brought suit below against the appellant for $865 06, for stores and supplies furnished appellee, while used in navigating the waters of Missouri under the statute relating to boats and vessels. The supplies and stores were alleged in the complaint to have been furnished on account of James L Sargent and Samuel Hart, the masters thereof.

Louis Circuit Court. STATEMENT OF THE CASE The plaintiff instituted suit against defendant, in the St. Louis circuit court, on a bill of exchange, drawn by a firm of which the defendant was a member on the 10th June, 1829, in favor of the plaintiff, and upon one Townsend, at St. Louis, payable in 40 days at the discount and deposite office of the U. S. Rank.

Louis Circuit Court. STATEMENT OF THE CASE., A collision alleged to be occasioned by the negligence of the officers and crew of the ap-pellees, whereby the steamboat Amaranth, belonging to plaintiff, was sunk in the Mississippi river near Clarksville, in the month of March, 1849. The above action was brought under our statute concerning boats and vessels, and the damages were laid at $30,000. The captain of the Dr. Franklin appeared and pleaded the statutory general issue.

Louis Court of Common Pleas. The points are: 3. What constitutes a possession of land, so as to dissieze all other persons and put them to their action of ejectment? 2. Can the plaintiff in support of his action and possession, show that the defendants have no title,by showing rhatthe title is out of them and in some thiid person? 3. What title is required to give a right of way? What c institutes a light of way for one over the land of another? 4.

Louis Circuit Court. 1.The judge of Ihe circuit court erred in refusing to grant plaintiffs a new trial on the merits by a jury, upon the dissolution of the injunction. The plaintiffs were entitled to a jury by the constitution of this State; and to a trial on the merits under the practice m chan* eery after the dissolution. IÍ. The judge erred in assessing the damages on the dissolution of the injunction, without a jury, the plaintiffs having demanded a jury. Art. 9 and 12.

T. The action of the county court, setting aside and annulling the supposed a'lotment of dower In the slaves of the decea-ed, under the order… Held: that had the defendant not been arrested, the motion would have been entertained. “Judgment was set aside after enquiry executed, it appearing that one of the defendants had no notice of the writ or declaration,” 2 Cow. & Hughes, page 845 (a), note 2, citing 1 Barnes. “It is a rule of law,” says Starkie, (vol. 2, Law of Ev.,)…

Isf._ The entry of Matson is a better title than the confirmation of Saugrain, because said entry is piofected by the second sec. of the act of the 4th of July, 1836, and consequently the court ought to have given the second instruction prayed for by the defendants below 2nd. Because there was no evidence in the cause to show that the land in dispute was with in Saugrain’s grantor confirmation. 3rd.

Louis Circuit Court. STATEMENT OF THE CASE. This suit was brought by the plaintiffs against the defendants and one Isaac Van Houten, in the circuit for the county of St. Louis, for the April term, T845, thereof, to recover the value of a slave hired by the plaintiff Hannah, before her marriage with the plaintiff Charles Beardsiee, to the defendants, to serve on their steamboat called the “Harry of the West,” and lost while in their service.

Louis Criminal Court. STATEMENT OE THE CASE. At the May term of the St. Louis criminal court, the grand jury of St. Louis county found and returned into court an indictment against the defendant for stealing certain property of Joseph Mentdrops, therein named, in and from the dwelling house of Gertard Timmerman, under the 30th and 36th §, art. 3, pages 359, 360, of the act concerning “crimes and punishments.” Afterwaids, this cause coming on to he tried, the State proved up…

Louis Criminal Court. The defendant, at the close of the evidence, asked the court to give the following iasisue-(ions; 1st. That before the jury can find the defendant guilty they must find: 1st, that the pistol was loaded with gun powder and ball, or with something calculated to produce death by shooting. 2nd, that the said pistol, so loaded, was capable of being discharged at the time. 3rd, that it was the intention of the defendant at the time, to kill Gabriel. 2nd.

Louis Circuit Court. STATEMENT OF THE CASE. in the year 1841, the complainant engaged with the defendants tn put up and to ship to them —he then residing at Glasgow. Missouri, and they in the city of St. Louis — a certain quantity of tocacco, which they were to receive at St Louis, reship thence, and sell on his account. They also engaged to advance him such sums of money from time to time, as he might stand in need of in his said business of pulling up tobacco.

Louis Circuit Court. 1st. The instruction of (he court was wrong respecting smart money, and vindictive damages. Potter & Lansing, 1 John. 222. 226; Smith vs. Putney, 6 Shop., 87. And also in saying the jury could assess what “smart money” they pleased. It is too indefinite. Cleaveland vs. Davis, 3 Mo. 235. This was an odious and injudicious phrase calculated to mislead and exasperate the jury. 2nd.

Louis Criminal Court. I. Evidence of the character of the females seen at the house of the defendant was illegal, and should not have been received against the defendant. Character is what the public think and express of, and concerning others, and is full of perils if it is to be received of ctime. It would eon» victan asylum of Magdalene. It is unknown to the law. II.

<p>Appeal from Jefferson Circuit Court.</p>

Louis Criminal Court. The main point insisted on by the defendant, (plaintiff in error,) is, that under this evidence the jury ought not to have found him guilty, and the court ought to give i party a new trial when the weight of evidence clearly shows that the jury either misunderstood or evaded the evidence.

Louis Criminal Court. STATEMENT OP THE CASE. The grand jurors of St. Louis county, at the last May term of the St. Louis criminal court, to wit: On the 20th day of May, 1850, found and returned into court au indictment against the defendant containing two counts.

I, A motion to quash is not the proper remedy where the objection is merely to the juris* diction oí the court. This defence being onlv available by plea in abatement. IE The indictment is good upon its face, and therefore it was error to quash.

Louis Criminal Court. I. If the defendant sold by his clerk or agent, he is liable as well as the clerk. Hays vs.^ the State, decided at the last May term of this court. II. Nor did the court err in instructing the jury that it was incumbent upon the defendant to produce his license to sell, and in default thereof they must find that he had no license authorizing him to sell. Wheat vs, the State, 6 Mo. 455.

Louis Criminal Court. STATEMENT OP THE CASE. Appellant was indicted at the- term of the criminal court, along with one Richard Jones, lor the murder of Ephraim Ilibler, a policeman of the city of St. Louis, and on the trial of said charge at the September term of said court, was found guilty of murder in the first degree.

Louis Criminal Court STATEMENT 03? THE CASE. Smith and others were indicted for a riot under the 6th sec,, 7th art. of the act concerning crimes and their punishment. R. C. p. 394. The defendants were arrested and brought into .ourt, and plead not guilty, and on the 21th .August, 1849, went to trial, when Levi, James and John Smith, John Ball, Silas W. Ganiot am! John Prant were found guilty.

1st. Was there a failure of title? If there he no failure, then there is no misrepresentation and the question of caveat emptor cannot arise. The deed of Moore passed no title to Douglass. The deed from Douglass and wife to Flint is defective, and does not pass any title io certificate or land in question. The deed from Flint and wife has the same defect.

Louis Criminal Court. Tiiat in order to convict the defendant under this indictment drawn apo~~ the 19th section of Statute of Missouri, page 402, it is incumbent upon the State to show: I. That the defendant leased the premises in question. There is no evidence to establi8h this fact. ir. it mns~ appear from the evidence that the house was leased for the purpose of a bawdy-house. That it was so kept as to be a nuisance to the neighborhood.

Louis Court of Common Pleas. The court erred in giving the instructions asked by the appellees. It leaves the question entirely out of consideration. It takes that essential element entirely away from the jury.

To sustain the cause of action, it is only necessary to refer to the statute; Revision of 1845, Title Administration, art. 4, sec. 8, and following.

This was an action , At the December Term, .1848, a trial was had which resulted in a verdict for the plaintiffs, and the defendant has brought the case here, by writ'of error to this court. The evidence in the court below was as follows:— Tlie plaintiffs proved that they were the heirs of James McCormick.

statement of the case. At thé September term of Monroe circuit court, 1847, the appellant sued the appellee in £oc w ^ n The appellant proved a suit instituted by one Daniel G. Davis against James M, Yager in Monroe circuit court, and a prosecution thereof to judgment, at the December term, 1843, on the 6th of the month, for the sum of three hundred and fifty dollars debt and sixty-four dollars and seventeen cents damages, and five dollars and eighteen cents costs.

Louis Circuit Court. STATEMENT OF THE CASE. This was on action of ejectment for a tract of 30 arpentsof land lying ih St, Louis county, is-what is called the Grand Prairie Common Pields.

Louis Court of Common PÍeas. STATEMENT OF THE CASE. This was an action of debt by the plaintiffs in error against the defendants in error. The . declaration contained two counts.

Louis Court of Common Pleas. I. The first point insisted upon by the appellants is, the irregularity and insufficiency of the service of the process. The suit was brought under-the new code. By the 4th section, article V. p. 78, it is provided that the. service of a summons .shall be: 1st. By reading the petition and writ to the 'defendant. 2nd. By delivering a copy of the petition and writ, &c. 3rd.

Louis Circuit Court. Two propositions were submitted: I. That Mrs. Tison and Mrs. Debetre were, in 1836, when their deed was obtained for $100, the owners of one-half of the land therein described;… Held: that a confirmation of the board enures only to the benefit of those vtho have filed claims and complied with the laws — p. 448.

Louis Circuit Court. STATEMENT OF THE CASE. Held: a general statement of loss sufficient. The insured merely swore to the amount of loss and circumstances. 1 Harrison, 410, (N. J.) Books and invoice destroyed by fire. Insured not bound to furnish bills of parcels and pass books of journeymen, &c., to the office. 2. As to time of delivering the account of loss.

Louis Criminal Court. STATEMENT OF THE CASE. Crow and others, defendants, were jointly indicted by the grand jury of St, Louis county for dealing as merchants without a license as required by law.

The special plea filed by the defendant is insufficientin law, and the court, therefore, erred an overruling the demurrer thereto. State vs. Hays and authorities therein sited.

Louis Circuit Court. 3. It is the duty of a trustee under a power, to follow strictly the terms of that power, and unless they do this their acfSjare void. Held: that the advertisement, which was confused and bungling, and did not designate how much was due, nor to whom it was due, was sufficient; it was not shown that the notice misled any person, or was misunderstood; but the evidence showed that it was understood, even in the country and neighborhood of the land. 10 Miss.

Louis Criminal Court. I. The court did not err in refusing to admit the record showing that Elizabeth Hollis, alias Royce, had been indicted and convicted of keeping a bawdy house. This fact has no relevancy to the question which the jury had to try- Admitting the fact that she had been guilty of keeping a bawdy house, this did not authorize defendants to damage her house and furniture, with force and violence. II.

T. That a vendee, who goes into possession under a contract of purchase, is not entitled to nolice to quit. In Smith vs. Stewart. Held: “there is no tenancy whatever. It never has been decided that a notice to quit was necessary unless the relation of landlord and tenant existed A mortgagor is quasi tenant at will, but here there is no semblance of any such relation. We might as well require a previous notice to quit in every case.

Louis Court of Common Pleas. {. When a special parol contract is executed, for labor and services, suit, for the compensation, may be instituted in general indebitatus assumpsit, and the agreement given in evidence to snow the compensation agreed to be paid. II. The objection by the court to the question of the defendants put to Ihe witness Graves, about the meaning of the written contract given it. evidence, was legal. Besides, no exception was t.iken thereto.

I. The appellee submits, that the verdict is clearly supported by the evidence, and if it were not, this eomt will not grant a new trial under the circumstances. The evidence must -S$reat]y preponderate against the verdict, to justify this court in invading the province of the v¡rjr.

Louis Court of Common Pleas, STATEMENT OF TH2? CASE. This was an action, instituted by the plaintiff in the St. Louis court of common pleas, .Aug. 9tb, 1849, against the steamboat, Madison, under the act of the general assembly, entitled “an act concerning boats and vessels,” to recover damages L-r an alleged mal-perfcrm-anee of a contract of assignment.

'fhg consideration of the note was either for the mnexpired term of Wm. Powers orto prevent Allen from publishing John A. Powers in'the Lynchburg papers or the combination of both considerations. If the note was given upon the statement of Allen, that 15 months of his time was unexpired, Ihen it was given upon the misrepresentation of Allen as to that matfer, wilful it must be presumed, and he would not be entitled to recover only between a third and a fourth of the amount.

Louis Circuit Court. X- By the act of 1R45, respecting slaves, (Eev. C. 1018) the boat or vessel in which a slave is transported out of this State, or from one place to another in this State, shall be liable to the'statutory fine and may be proceeded against according to the provisions of “an act con . cerning boats and vessels,” without prejudice, &e. Sec. 32, p. 1018. If.

Louis Circuit Court. STATEMENT OP THE CASE. NewhoUse, the appellee, brought his action of trespass qua dan. fre. in St. Louis circuit court against Walker, the appellant, Wallce1- appeared, and pleaded several pleas, to some of which a demurrer was sustained. As the questions arising on tbedemurrers are not brought into this court, it is not necessary to set out the progress of the litigation in settling the pleadings.

Louis Court of Common Pleas. STATEMENT OJT THE CASE. Respondents, Ltse & Dolen, instituted suit against appellant in the St. Louis court of cont-mon pleas, at the September term, 1849, by petition, which set forth, in substance, that they, with appellant, in January 1849 entered into a contract whereby respondents were to do the excavation for a house to be buidt by appellant in the city of St. Louis, for which appellant was to pay them fourteen cents a cubic yard, to be…

Louis Criminal Court. It is contended: I. The indictment found at the July term of the criminal court, 1849, and upon which the defendant was tried and convicted, is defective, in not setting out the means by which the room of Patten was broken open and entered. Whether the inner door, mentioned in the indictment was entered by means of false keys, or by picking the lock, or by forcing the lock or bolts, or by breaking the same down, does not appear from the indictment.

Louis Circuit Court. STATEMENT OP THE CASE. On the 9th January, 1839, William Christy, of St. Louis, made his will by which he devised to his wife Martha J. Christy for and during her life the two blocks of ground on which he resided with all the buildings for a place of residence for her and any of the testator’s children she might choose to live with her.

Louis Circuit Court. 1. The court below in this proceeding acted under the provision contained in sec. 60 of art. 1, of the “act to provide for the recovery of debts by attachment.” Revi. Code, p. 145. That section leaves the matter wholly, to the judgment of the court. The sheriff is not to have whatever he may charge for his trouble nor be allowed any expenses he may be at, but only such as shall seem to the court reasonable and just.

Louis Circuit Court. 1. That each count of the amended declaration in this causéis in force ex delicto-. 1 Ghitty Plead., 166, 167. 2. That by sec. 11, of the act concerning costs, p. 243, Rev. Code of 1845, the recovery of any damages by the plaintiff entitles him to costs if the damages chimed in the declaration showed the court to have jurisdiction of the cause. 3, The damages claimed in this case (two hundred dollars) gave jurisdiction to the circuit court. Revi.

The point arising in this case upon the record, is the want of venue of the alleged offence. The indictment does not show where or within what jurisdiction the alleged second deed was executed; the residence of the parties does not supply the defect. The indictment is also defective in that it vaguely sets out the deed to Grief Roe, “a deed for the conveyance’’ of certain, tracts of land; defines nothing in regard to the legal qualities or properties of the deed.

This suit was brought on a note for $387 63, dated at St. Paul, Missouri, 17th Oct. 1848, •signed by Griffin as maker and payable eight months after date to Thomas F. Clayton, or order, for value received, negotiable and payable, without defalcation or discount, with interest from maturity at the rate of 6 per cent, per annum, which was endorsed before maturity and delivered to Romulus J. Poindexter, who, before it was due, endorsed and delivered it to -Phipps and others, a…

Louis Circuit Court. STATEMENT OF THE CASE. On the 8th of October, 1849, a recognizance was filed in the circuit court of St. Charles county conditioned for the appearance of John Isaac and William Floyd, in the circuif of said county, at the October term 1849.

Louis Court of Common Pleas. The negative on this question is maintained for following reasons: I. Because the garnishment of the defendant in execution, affords no justification to the sheriff for failing or neglecting to serve the execution. He cannot officially take notice of the garnishment, or, in any respect, recognize it as a solid defence lo the execution. II.

Louis Criminal Court. STATEMENT OF THE CASE. The defendant was charged with being a principal in the second degree of murder, In the first degree in being present, aiding and abetting Ward in killing Hibler. He was arraigned on the )28th of June, 1800, and plead not guilty', Ü At the instance of defendant a severance was granted 14th of August, 1850.

Louis Criminal Court. Í. The attention of the court is directed to the evidence iri this case, and we think we may safely say, so far as some of the defendants are concerned, that there is not sufficient evidence to sustain tfce indictment, and that the jury had utterly failed to distinguish in the application of the testimony. The trial of this cause took place on the 28th ot Jan , 1850.

Louis Criminal Court. Michael Sunday, in proper person. The appellant hails from Germany, where he came into the world, bearing the ancestral name of Sontag, which, translated from the Teutonic into Anglo-Saxon, means Sundiy. By the lat'er name he has been impleaded in the Viminal court, that tribunal claiming the right to re-baptize him in English, Of the legality of such a proceeding he is dubious.

Charles Circuit Court. I. The confirmation of this tract of land was to the man who exhibited it to the board of commissioners as his property and procured its confirmation, and not to David Cole the original grantee who had long before parted with the title, and never set up any claim to it. See Bisuel vs. Penrose’s heirs, lately decided by the Sup. C. of the TJ. S. II.

1. The court erred in giving defendants instruction. 2. The court erred in refusing plaintiff’s instructions. 3. The court erred in overruling motion for new trial. 4. That defendants were tenants at will. Sec. 1st, section of acts, “Frauds and Perjuries.” R. S. 1845. 5. That an estate “at will” m lands is the smallest and most insignificant known to the law and can be terminated at any moment by cither landlord and tenant. Blackslone, 2nd book, 145-6. 6.

Louis Court of Common Pleas. STATEMENT of the case. The defendants in error commenced suit against plaintiffs in error in St. Louis Court of Common Pleas on the 13th July, 1849, on a promissory note, dated 20th Eeb’y, 1848, payable to L. M. Wiley It appears that on the trial below the defendants in error admitted that they had no interest in the notes, and were acting merely as agent3 for Wiley l¡ Co., to collect the same.

I. It is submitted that this action had been an action of ejectment instead of an action of debt, and the limitation of twenty years had been pleaded; thata replication jof residence in Virginia, nntil within twenty years of the commencement of the suit, would be defection, and no judgment could be rightfully rendered for the plaintiff on issue being io md for him.

1. This cause being tried originally before a iustice of the peace in Mason township, Marion county, no appeal could be taken to the circuit court. See the act establishing the Hannibal court of common pleas, affirmed March 27,1845, local and private acts, 1845, p. 66; also, amended acts of 1847, session acts p. 25. 2. No appeal was taken, in the time or manner required by law, to the Hannibal court of common pleas. The pretended appeal should have been dismissed.

Louis Circuit Court. STATEMENT OF THE CASE. This was a suit brought by the plaintiff to recover the value of a quantity of lumber, alleged to have been sold and delivered by the plaintiff to the defendant and one Charles L. Bierman, who was alleged to have been a partner of defendant at the time. The account commenced December 13,1848, and extended to March 12, 1849.

The petition stated, that plaintiff sued defendants on a sealed nole, dated May 14lh, 1848, made by Johnson as principal and Cockran as security, for $150, at twelve months after date, payable to the order of John Lanear, without defalcation or discount, with interest from ■ date. On the 11th June, 1849, Lanear assigned said note to the plaintiff.

Louis Court of Common Pleas. STATEMENT OF THE CASE. This was an action brought in the St. Louis court of commm pleas, by the defendant-!» error against the plaintiff in qjrror, to recover the amount of a promisory note, dated September 26th, 1842, for $328 40, made by the plaintiff in error and pay-.ble to the defendants in error by ibeir partnership style of “Hopkins & Co.’’ The suit was tried below, on the general issue.

It is contended that the nole sued upon, was totally without consideration, and for that reason Ihe judgment for the plaintiff below was erroneous, and ought to have been set aside upon motion. Ch. on contracts 25. There was also a misstatement of a very material fact. That is, as to the improvement being upon government land, both settler and buyer may, at the time, have honestly believed that such was the fact. It is not seen how this could aller the case.

It appears from the judgment of the circuit 'court, that what the court calls “the allow» anee,” was set aside, upon the ground that the administrator had no notice. It is insisted, that when judgments, obtained against the deceased in his life, and filed in the county court, the administrator is not entitled to notice.

The first question noticed goes to the sufficiency of the indictment. Held: the indictment was good: Peck vs. State, 2 Hump., 788 The substance of the offence, to a reasonable intendment, is alleged in the indictment. In general, an indictment need not adopt the very words of the statute; the same substance, to a reasonable intendment, is sufficient: State vs. Little, 1 Venn., 331.

Louis Circuit Court. STATEMENT OF THE CASE. I. On the 13th of January, 1847, John Kingsley brought suit on a note executed by Ross &. Cowie, a co-partnership firm composed of Joseph Ross & James Cowie, dated May 15, 1846, against said James Cowie, by attachment, in the St. Louis circuit court, and on the same day the Missouri Fire Company was summoned as garnishee.

I. That the judgment and decree of the lower court, should, from the evidence, have been for a title upon the judgment of the amount of money really due Thos. J, Ferguson at the time of his death for Joseph M. Ferguson. II. That the court being satisfied that the transaction between the Fergusons was only a mortgage, the complainant should only have been required to pay the amount of indebtedness due at the time of the death of Thos.

X. In this case, Brock the creditor, not only released the levy of the execution upon the land of the principal, which, if sold, would have discharged the debt, but he suffers the time of the judgment to expire, and the land was sold under a junior judgment.

The appellant, for the reversal of the judgment, urges the following! I. The issue of female slaves, born during a hiring, or tenancy for years, or even for life, go to the remainderman or revisioner, after the expiration of the tenancy. The owner for the term of life or years, acquires no property in the issue save a temporary one: I A. K, Marshall, 532; Murphy vs. Briggs; Miller vs. McLelland, 7 Monroe 232.

I. A man may dedicate land to the public. To do this requires no died, nor any graptee. Thus, if he permits it to be used as a burying ground, or as a common highway, street or square. II. The dedication, requiring no deed, may be proved from circumstances.

St. Louis court of Common Pleas. I. Judgment was given for the right party. II. The court did not err in refusing to grant the motion for a new trial.

Louis Court of Common Pleas. STATEMENT OE THE CASE. This was an action of ejectment, tried in the St. Louis court of common pleas, May 1st, 0. Held: it could not be disturbed. 4 Metcalt, 448, pages 452,457 — where line left ambiguous or uncertain, acts of parties may determine it. 2 Caine’s 19S — Judge Spencer says, p. 199, “an agreement by parol to the settlement of a line, appears to he effectual, and not liable to any objections on the score of the statute of frauds and…

Louis Court of Common Pleas. STATEMENT OE THE CASE. This was ah action of detinue brought by the appellee in the- Court below, to recover a raft of logs. The suit was tried by a jury on the general issue. The plaintiff gave in evidence, a confirmation by Known Bates to Daniel Clark of 7056 arpens of land, situate in St. Charles county. A survey of the said confirmation by the Surveyor General, and a copy of the will of Daniel Clark and the probate thereof in Louisiana.

In the year 1845, William Henry died intestate, leaving a widow, Mary Henry, and one child only. Adallne Gentry, who had previously intermarried with Joshua Gentry. The deceased let i large personal estate. Joshua Gentry administered thereon. Mrs. Henry, the widow elected to fake absolutely, a share of the personalty equal to the share of a child, as her dower, according to the 2nd section of the dower law of 1845. See Rev. C. of 1845, pj 430.

The court erred in refusing the first instruction to the effect that plaintiffs below had not ¡nade out a prima, fade case. The plaintiffs below did not show any act of incorporation entitling them to sue. There is nothing to shew that plaintiffs below have any right to recover in this action. It is contended by appellants that Bailey was a competent witness.

1. The rule of the law in the computation of interest where partial payment have been made, is. that interest shall be cast on the principal debt to the first payment, add the interest thus produced to the principal and from their aggregate amount deduct the partial payment— then on the remainder (provided the payment was sufficient to discharge the previously accrued interest) cast interest to the second partial payment, add and deduct as before, and so on from payment down…

<p>1. Drunkenness is no excuse for crime.</p> <p>2. It is wrong to instruct a jury that “the want of motive or interest to swear false is a circumstance from which they are at liberty to infer that the testimony of the defendant was not wilfully and corruptly false.” The secret motives which give birth to acts are not always susceptible of proof.</p> <p>3. Good character is a circumstance, but not “a strong circumstance,” in favor of the accused.</p>

I. The indictment was good upon its face, and as to all the necessary endorsement, and therefore it was error to quash or set aside the indiclment for reasons foreign to the record, and which had to… Held: and very properly.

Louis court of Common Pleas. STATEMENT OF THE CASE. I. The court of common pleas having ordered the sale of the appellant, she was sold, and publication having been made to creditors to present their claims and demands for allowance as required under the provisions of the statutes concerning “Boats and vessels,’’ and having filed their bond, the justice issued his warrant against said appellant and directed to any constable of St. Louis township, requiring said constable…

The error complained of, is the refusal of the circuit court to set the verdict asid# and grant a new trial. The defence set up rests upon the assertion that a quantity of public land, adjoining the land which was sold and conveyed to Scott by Spear was the consideration of the note in suit. Prom the evidence, it is clear that the adjoining public land was in no way considered by the parties as any part of the consideration for which the note in suit was given.

Louis Circuit Court. STATEMENT OT THE CASE. On March 6, 1849, Dunn filed his deed in ejectment, against the plaintiff in error, in the St. Louis circultcourt, to recover possession of the north subdivision of fractional block No. 04, containing four and thirteen hundredth acres, according to Deward’s survey of the St. Louis common.

I. The evidence was perfect to establish the discharge of McKee, that discharge would have prevented the co-debtors from taking their recourse upon him, and must, therefore, operate to their discharge also.

I, It is insisted that the court erred in overruling the motion to require respondent’s attorney to show his authority for instituting the present suit. By this motion no imputation Of improper conduct was attributed to the attorney. It is clear, that upon a proper case made out, the court will require the attorney to show his authority. McKeman et. al. vs. Patrick et. al., 4 Howard Miss.

Louis Circuit Court. 1. Because the bond for appeal, filed before the justice was grossly defective and bad, tor reason that it was a bond in a case wherein one William Smith was plaintiff below, and one Joseph Keenan was defendant, and therefore no bond for an appeal in this case, and therefore the St. Louis circuit court committed no error in dismissing the appeal for want of a bond as is required by law: See Rev. C., p. 668, art. 8, sec. 3 — justices’ courts. II.

Louis Court of Common Pie as. STATEMENT OF THE CASE. This was a demand, presented by the appellant, to (he St. Louis court of Common Pleas, for allowance against the appellee.

Louis Circuit Court. The bill does not set out sufficiently the title of complainants; the interest of plaintiffs must be joint: Smith’s Ch. P., v. 1, p. 98. The affidavit was defective: lb. 395.

Francois Circuit Court. The circuit court committed error in sustaining the demurrer for the following reasons: 1. At the time the defendant presented her remonstrance there was no law giving to any one over whose land a county road may he located, damages for the passage of such road. The 13th section of the first article of the act concerning “roads and highways,” statutes 1S45, under which most of the proceedings were had, was repealed long before.

Louis Circuit Court. STATEMENT OE THE CASE. This case was an action in assumpsit, founded upon a contract of affreightment.

Louis Court of Common Pleas. STATEMENT OP THE CASE. Peter Wenger, the plaintiff in this cause, sued the defendant before a justice of the peace for St. Louis county on a promissory note made by the defendant in favor of one John Scheiffleni, and by him assigned to the plaintiff.

1. It does not appear by the affidavit of Glascock he had any defence to the suit. tS. It does not appear how the note came to be executed to Rand. 3. It does not appear that the pretended testimony wanted was not to be had in Marion county at and before the trial. That he wrote letters is nothing; may have written them to the wrong place to gel a continuance. Mrs. Brigham knew the ages of her children, why •did not take her deposition? When did Fuqua tell him?

Louis Court of Common Pleas. STATEMENT OF THE CASE. Margaret A. Whitlock filed a petition, stating that on the 13th day of August, she drew a check on E. W. Clark & Bros, for $1800 in favor of Willis L. Williams, and delivered the same to him, hut he gave no consideration for it.

Louis Criminal Court. statement op the case. The defendant, on the 19th of January, 1850, was indicted for burglary in the second degree by breaking into .the dwelling house of Henry Oberhellman, under sec. 16, art. 3 Crin», and Pun. The defendant was arraigned and plead not guilty.

Louis Circuit Court. The error of the court below consisted in giving the instruction which in effect took the whole case fiom the jury and compelled the plaintiffto become non-suit. The instruction says that the transaction by which the plaintiff acquired his title was not within the authority of his agent. But, the true character of the transfer, and the extent of the agent’s authority, were both matters of fact to be determined by the jury.

1st. That the deed from Evans and wife to James Bryan was not so acknowledged and recorded as to impart notice to subsequent purchasers. Ter. Laws, vol. 1, p. 48; Downing vs. Gallaher, 2 Serg. & Rawle. p. 458. 2nd. The judgment was for more land than the plaintiff below was, fiom the evidence, entitled to. The recovery was for 640 acres, when he had shown himself entitled to but one-half of one-half of the tract. 3rd.

Louis Circuit Court. I. The decree held Reene Paul accountable as trustee wbo had violated his trust, and it was right to make him account for the value of the propeity held by him in trust, and sold by lúea, at the value for which he sold at the least.

The bill of exceptions does not show that appellants ever excepted to the decision of the court on any question of law arising upon the trial of the case, 2. The bill of exceptions shows that the evidence in the case was produced to the court sitting as a jury, and in that capacity it devolved upon the court to pass upon the effect to which the evidence was entitled.

On the 5th of September, 1845, Johanna Maria Rutgers, Sarah Johanna Rutgers, Maria Jere-mina Provauschere, John, alias, Jan Kesselrus and Aruendina Wilhelmeni Kesselrus, his wife, declared in ejectment against Morgan Wright for a tract of land in the county of Lincoln, W. half section 15, township 48, range 1, west part survey 7056 arpents confirmed to Wm. Dunn or legal representatives.

Louis Circuit Court. I. The will was not sufficiently proved; it was not present, and seen by the witnesses when they testified, though their depositions were taken in the neighbourhood of the original olographic will. It was in duplicate as was said, and only one is produced; suppose they did not agree. Both should have been produced and o,.ened here; but such was not the fact. II. The codicil was not sufficiently and legally produced.

Louis Court of Common Pleas. I. The court should have given instruction No. 1, because it is law applicable to the evidence in the case, and not otherwise supplied. No. 5 does not supply it, because No. 1 makes a fundamental disposition of any property to defraud any creditors sustain this suit. The refusal of this, and giving No. 5, tells the jury that No. 1 is not law. II.

Louis Criminal Court. I* A new trial ought to have been granted because the verdict is against law in thisi 1st. The right o£ action at all, in such cases, is given by the statute, and is contingent in its creation, depending upon the performance of a certain precedent, that is, due diligence on the part of the holder, as against all parties and funds primarily liable. This appears to be settled in Collins vs. Washburton and Kirbey, 3 Mo.

On the issue as to the soundness of the mind of said James McGee, to entitle him to make a valid will, the weight of evidence was with the defendants below. XI. The court below committed error in permitting persons other than the attesting witnesses to testify as to their opinions of the testator’s capacity at the time to make a will (see 2 Greenl. on Ev. p. 577,) sec. 691, title wills, and authorities there cited. 7 Mo. E. 589, Wilhington et. al. vs. Withinglon et. al. III.

I. That no fi and has been proved against Kanada, nor have facts been proved by which • fraud could be inferred. II. The insti action asked by the plaintiff, and given by the court, go upon the supposition that fraud had been proved. III. That, fiom the eviaence, the jury might well infer that Kanada had received from North hut $700, and that he had sold him the negroe set $850, which would leave a balance against North.

Louis Court of Common Pleas. The court erred in refusing the 1st, 2d and 4th instructions asked for by plaintiff — because The rule is very old and very firmly settled that negotiable paper is not payment of a demand, unlessit is so taken by the holder, as absolute payment; and if not, i is no payment, if it should afterwards turn out to be of no value: Toby vs. Barber, 5 John., 68; 2 Lord Raym., 929, 930; Clark vs. Mundal, 1 Sa^k., 124; 7 Tenn.