Volume 15 — Missouri Reports

MTÍTION FOR MANDAMUS. i. The following is an account presented try Alexander Hamilton, judge of the circuit rourt, to the county of St. Louis for payment. “The county of St. Louis to Alexander Hamilton, Dr: For amount of compensation allowed hsm out of the county treasury of St. Louis county for his services as judge of the 9tb judicial circuit.

Louis Criminal Court. I. The court below erred in admitting the dying declarations of Ephraim Hibler, because, as shown by 1he evidence,.the same were not his own voluntary statements, but were drawn from deceased by one who went to collect testimony against the defendant. Hence the influences operating upon the mind of the witness, whose dying declarations are sought to be introduced, were not such as would dispense with the necessity of an oath. II.

Louis Circuit Court. !. The verdict was against evidence, and for more than plaintiff’s whole claim, under his ' bill of particulars. 2. The set off of the notes, ought to have been allowed. They were clearly proved, and nothing was shown to impeach them. 3. The third instruction of the court compelled the jury, under the proof, to find a verdict for the defendant, and to allow the notes as a set off. 4.

Louis Court of Common Pleas. STATEMENT OP THE CASE. This was a suit by petition under the new code of practice, upon a note, in the words and figures following, io-wit: «$026 0° St.. Louis, Sept. 28th, 1850. lhree months after date I promise fo pay Messrs. McAlister & Co., or order for value re ceived, six hundred and twenty-six dollars, at-the- Bank of the State of Missouri.

Louis Law Commissioner’s Court. STATEMENT OF THE CASE. This was an action brought by Jas. E. Yeatman, Edmund F. Pittman George R. Robinson &. Co., against Thomas Fox and Thomas Green, upon a bond, executed by said Fox and Green to the city of St. Louis.

Louis Circuit Court, STATEMENT OP THE CASE. The appellants filed their motion in the circuit court for judgment on a forth-coming bond, made by the respondents to the sheriff on an execution out of the circuit court, in favor of Page & Bacon vs. Butler.

Louis Court of Common Pleas. STATEMENT OF THE CASE. McCabe, as surviving partner of Lane & McCabe, sued Lecompte before a justice of the peace. The cause was tried in July, 1850.

Louis Circuit Court. 1. It seems unnecessary in submitting a brief in this case to do more than stale the points decided. The decision is so grossly wrong that argument would be wasted. The court decided in refusing the first instruction. That the confirmation to Cottard, and the survey and ipeation under it, did not vest the title to the premises in Cottard of the survey and location were correctly made. 2.

Louis Court of Common Pleas. STATEMENT OS’ THE CASE. Tliis was an action brought by plaintiff as administrator de bonis non of Duty’s estate, on a written instrument of defendant’s executed to John E. Darby, who was the preceding administrator of said estate, for the hire and conditional return of a slave, belonging to said estate.

Louis Circuit Court — In Chancery. STATEMENT OP THE CASE. Sometime in the year 1819, John McCourtney, Sr., John McCourtney, Jr., Thos.

Louis Court of Common Pleas. STATEMENT OF THE CASE. Sigerson sued Harker, under the new code, on the J4fb January, 1850.

Louis Circuit Court. STATEMENT OP THE CASE. This was an action by petition under the act of 1849, to ref arm pleadings and practice, §-c., in favor of the plaintiffs against the defendant, as administrator of the estate of Richmond J. Curie, deceased. The plaintiff’s petition is founded on seven promissory notes, alt made by Curie, defendant’s intestate, or by Curie & Scdtt, of which firm Curie was a member.

1. That the county court of Jefferson county had no right to order Pipkin, the public administrator of that county, to administer on the slaves in question, and that he had no right to sue for them. The slaves of John Keeton were inventoried by Wm. Keeton, the administrator, in 1827.

Louis Court of Common Pleas. STATEMENT OP THE CASE. This was an application to the chancery court for an injunction against a judgment at law. The suit was originally begun in the St. Louis circuit court, but was subsequently transferred to the common pleas court.

Louis Circuit Court. STATEMENT OF THE CASE. The plaintiff filed his petition in the St. Louis circuit court on the 4th of September, 1849, alleging, that he had made deposits of cash at the bank of the State of Missouri, between the first of April, 1842, and the first of August, 1846, to the amount of $37,771 90, with an exhibit of the items; admitting credits for payment to the amount of $35,071 90, and claiming a balance due him, on the first of August, 1846, of $2,700.

Louis Criminal Court. I. It is insisted by the defendant that the evidence does not show any legal guilt in the defendant, Mix. There is no evidence in this case, which shows that defendant knew that Williams was passing counterfeit money, nor even raises a legal presumption of his participation. He did no act, nor said one word to Williams which tends to show his participation or countenance to aid or support Williams.

Louis Court of Common Pleas. STATEMENT 0,F THE EASE. This is an appeal from the St. Louis court of common pleas. The action was originally for “(he-recovery of a piece .of land in Carondelet. Both parties claimed under Franck Fournier.

Louis- Criminal ©ourt. STATEMENT OP THE CASE. Tliis was an indictment against Michael, Christopher, and Valentine Wolff and'Josephus Pennol, for grand larceny of oats and glass; and the defendants were also charged upon the second count, with receiving the same, knowing (hem to have been stolen. The defendants, Christopher and Valentine Wolff severed, and were tried separate!;' from Michael Wolff.

<p>I. A refusal to grant an injunction is not a final determination of the cause, within the meaning of the statute, and an appeal from it will not lie.</p>

Louis Court of Common Pleas. STATEMENT OF THE CASE. Pond sued Wyman under the new code, for the following, among other items not denied by Wyman: Plaintiff states, that defendant owes him $150, for making a set of plans and specifications for a school house, to be erected by defendant in the city of St. Louis, and getting in the estimates for the work thereunder.

<p>ERROR to St. Louis Court of Common Pleas.</p> <p>STATEMENT OF THE CASE.</p> <p>On the 27th of December, 1850, plaintiff in error began suit before Justice Mann Butler or: a-raccount, which is as follows, to-yrit -,</p> <p>St. Louis, December 9, 3850.</p> <p>“Mr. John H. Spabr,</p> <p>bought of Wm. M. Hahlow:</p> <p>Two Walnut Wardrobes at$10 50......................................... --...$21 00</p> <p>Six “ Cane Seat Chairs, 1 95............................................ 11 70</p> <p>One Elizabeth Kockirig Chair...................... ............................. 14 50</p> <p>$47 20”</p> <p>A trial was had, and the verdict and judgment were for the defendant in error.</p> <p>The plaintiff in error duly appealed therefrom, and thereby thp case went up to lire S'. Louis court of common pleas. Upon trial there, the following evidence was, in substance, given, to-wit:</p> <p>That plaintiff had a furniture store in the city of St. Louis, and advertised an auction sale of furniture at his store, by large handbills publicly put up, stating the place of sale, the name of the proprietor and the name of one Mr. Manuell as the auctioneer. That the defendant attended the sale and purchased the articles sued for, at the prices stated. That the sister of the defendant also purchased, at. the same sale, about $80 worth. That bills of both purchasers were made out, in the name of the plaintiff, by the clerk of said Mandell, at the plaintiff’s store, and handed to the defendant, who took them home, and got the money ready and was going to the store to pay for them, when said Mandell came in with the bills, and defendant was about to pay him the money, and Mandell said that the plaintiff was owing him for commissions for selling, $80 and $40 for other goods sold; that as he, Mandell, was owing defendant for the board of himself and wife, at defendant's hotel, in bt. Louis, about $75, that this might be applied on the bills, which was accordingly done, leaving a balance of about $40 which defendant paid Mandell, and therefore Mandell receipted the bills. The next day, plaintiff’s clerk called upon defendant for the payment of the bills, which defendant refused to pay, because of said settlement with Mandell Thereupon plaintiff sued defendant.</p> <p>The sale continued abouta week, and after said settlement with Mandell. The further sellingwas by another auctioneer, Mandell becoming sick the next day alter said seltlement.</p> <p>It was shown to be the custom with auctioneers to make out the bills, take pay and give receipts. Mandell testified that he had received a piano foite from another person lo sell; that it was taken to Harlow’s rooms and sold, on the occasion of Harlow’s sale, for $15, the amount received by Harlow, but that he, Mandell, has accounted lo the owner for it. That he settled with deiendant for his bill and that of his sister, and one other small bill of $7. That after crediting Harlow for what he received on said bills and charging him for the proceeds of said piano, and his commissions and expenses in selling as auctioner, Harlow still owes him $67. That he bad no express authority from Harlow to collect bills.</p> <p>The plaintiff asked the court lo give the following instructions, to-wit:</p> <p>“No custom or usage is sufficiently proved in this case to make it of the effect of a law or of advantage to the defendant.”</p> <p>“A person authorized lo sell as auctioneer is not thereby authorized to collect the proceeds of sale when the sale is made in the proprietor’s name and in his store.”</p> <p>“If Mandell was authorized by custom, law or express authority to collect the proceeds of the sales testified about in this case, a settlement with him, by the defendant, for a purchase, by applying thereto a debt of his against Mandell, was not a good payment and binding upon the plaintiff.”</p> <p>All these the court refused to give, and the plaintiff duly excepted thereto.</p> <p>Tor the defendant was asked the following instruction, to-wit:</p> <p>“An auctioneer is entitled to receive payment, and may give discharges to purchasers at his auction sales, and if such auctioneer has a claim on his principal for commissions and charges, he may credit purchasers at such sales with his private debts to them, not exceeding the amount of such commissions and charges.” Which instruction the court gave, and thereupon the court, sitting as a jury, rendered a verdict for the defendant.</p> <p>To the giving of said last instruction the defendant duly evcepted. The plaintiff in due time filed a motion to set aside said verdict and grant him a new trial, for the following reasons, to-wit:</p> <p>1. Because the court erroneously refused to give the instructions asked for by plaintiff.</p> <p>2. That the court erred in giving the instruction asked for by defendant.</p> <p>3. That the verdict is against the law under the evidence.</p> <p>The court refused to grant this motion, to which decision the plaintiff duly excepted. Final .judgment for the defendant was tendered upon said verdict. Plaintiff duly filed his bill of exceptions, which was signed, and thereupon sued out a writ of error, upon said judgment, to th is court.</p> <p>I. The fact of Mandell’s being employed as auctioneer, did not give him, under the circumstances of this case, authority to collect the purchase moneys.</p> <p>II. Even if Mandell had authority to collect the purchase moneys, a seltlement by him, with Sparr, by allowing him a.credit .of a debt he owed lo Sparr was not binding upon Harlow : 7 N. H. Rep. p. 446$ 1 Green Iowa Reps. 360$ Story on Agen. Secs. 98, 99, 181, 413, 430$ 1 Porter’s Rep. 212. The owner could not appropriate the money collected by him in payment of a debt which he, the principal might at the time owe him: 5N.H. Rep. 297, Morse vs. Wood.</p> <p>I. An auctioneer may sue for, receipt for and discharge an account for goods sold by him as auctioneer, even though the sale took place at the known house of the principal: (Leading cases) Williams vs. Millington, 1 H. B, 81. See also 2 Smith’s Leading cases (last Am. Ed.) 308.</p> <p>II. If an agent sells goods and the purchaser makes payment to him under the belief that the sale is to pay advances, such payment is good, though the belief be mistaken: Warner vs. McKay, 1 M. W.595.</p> <p>III. By the dictates of common sense, the auctioneer may do as he pleases with the proceeds of the sale, to the extent of his charges and commissions, for, so tar he alone is interested.</p> <p>On this last point the case was decided below. Story on Agency 407.</p> <p>In Story on Agen. § 408 adjinent, the case at bar is actually put and decided: Hulson vs. Granger, 5 B. & A. 27$ 7 Com. Law Rep. 10.</p>

Louis Circuit Court. STATEMENT OF THE CASE. The complaint in this case was filed on the 25th February, 1850, returnable to- the April1 term of the circuit court, and was executed on the day it was filed. It set forth that the account accrued on account of the captain; that the boat was engaged in navigating the wateis of this State, and that the subjoined account accrued within six months next preceding the commencement of the suit.

Louis Court of Common Pleas. I. The respect which this court judiciously entertains for the verdict of a jury in a civil ease, becomes valueless when a blunder is manifest. A reversal would not have been urged on this ground, but from the conviction, sincerely entertained, that the appellant has been sacrificed for his ignorance of English. It is certainly the duty of every adopted citizen to learn our language, but I know no law which authorizes us to teach them in this way.

Louis Court of Common Pleas. STATEMENT OE THE CASE. In this case the petition sets forth, that in the spring of the year 1848, defendants were owners of the steamboat Princeton, and that plaintiff contracted with them for the sale of the bar of the boat to him; that they agreed to sell the bar to him for the sum of one thousand ■ dollars, and thatj they agreed to give him a valid bill of sale for the bar upon the payment of this sum.

Louis Court of Common Pleas. STATEMENT OF THE CASE. Isaac H. Sturgeon introduced to plaintiffs one William P. Wilson, and recommended him as a fit person to be trusted for goods; and thereupon the plaintiffs sold Wilson goods to the amount of $617 35. Defendant gave to the plaintiffs, at the time of the purchase, a guaranty for the payment of $400; and, at the same time, Wilson gave his note to plaintiffs for the balance, $217 35.

Louis Circuit Court. STATEMENT OE THE CASE. This was a suit begun before justice Mann Butler, February 7th, A. D., 1847, by the defendant in error against the plaintiff in error oñ an instrument of writing in the following figures and and words, to wit: “Dollars $'100.

APPEALS from Stoddard Circuit Court. The court erred in sustaining the motion to quash the indictment. The indictment is in the language of the statute containing the offence, and is therefore sufficient.

xh© indictment substantially sets forth the offence as described in the act creating it. It charges the defendant at &c., on &c., as a lawyer, being employed, did practice the law in part, for a livelihood, without license, &c. It is submitted, that this indictment sets forth to a reasonable intendment the facts constituting the offence, therefore the court erred in quashing it.

The appellant, in this court relies on the statute of limitations: 1. It is insisted, that as to Slone, the statute of limitations commenced running on the 5th of April 3838, and the statute became a defence after the 5th of April 1848, more than two years before suit was instituted in the county court of Jefferson county. 2.

i.-i. That none of the provisions of art. 5 of the statute of 1840, regulating practice at law, apply to, or govern (lie proceedings instituted against the representatives of a deceased defendant after the 4th cf July, 1849, where the original defendant died prior to that time.

Genevieve Circuit Court. 1. That Ihe circuit court erred in setting aside its own judgment, after such a lapse of time, that there was no regularity in said judgment. 2. The circuit court erred, not only in reversing its own decision, but also the decision of the supreme court, which in all things, and in manner and form, affirmed the said judgment of the circuit court. 3.

1. The appellant claims title by virtue of the act-of 1807, and the respondent by virtue of pre-emptions taken under acts of Congress; and as Congress had parted with the title, and it belongs to one or the other, therefore Congress has no further claim to it.

Rely upon the following points: 1. That the chancellor had no jurisdiction of the case, the remedy at law being perfect and of daily use. 2. The court had no power to disturb the settlements of the county court. 3. If the court had jurisdiction of the subject matter as to Oldham, there was certainly no propriety in rendering any decree against Broaddus who was not a trustee, and whose undertaking was merely collateral to that of the trustee, Oldham. 4.

APPEAL to Washington Circuit Court. 1. It is insisted, that the boy Toney did not pass to the piaihtifft, under the third filduse bt Stephen Dügan’s Will, but that as to him, Stephen Dugan died intestate.

ERROR t© New Madrid Circuit Court. STATEMENT OF THE CASE. This case is from the New Madrid circuit court. The plaintiff in error, James Knox, at the March term of said court, moved for leave to file his bill, praying an injunction of a judgment therein specified, which prayer wes awarded him. The bill contains the following allegations: That appellant on the 22d day of December, 1844, purchased of one Jno.

Louis Circuit Court. STATEMENT OF THE CASE. This was a» action cffi detinue, instituted before the Law Commissioner of St. Louis county, in August, 1849. Judgment being given against defendant, he appealed to the circuit court, and tjiere moved to dismiss, because the Law Commissioner had not jurisdiction of the action of detínue. The circuit court sustained the motion. This is the only point assigned for error. 1.

Charles Circuit Court. STATEMENT OF THE CASE. This was an action of detinue, to recover the possession of several slaves, instituted by the plaintiff in error against the defendant in the court below. The circuit court, sitting as a jury, found a verdict for the defendant, and a motion for a new trial having been made by the plaintiff, asnd overruled by the court, the case is brought here by appeal.

The points relied on by the plaintiff in error are, substantially, those only which are assigned for error. 1. The court improperly permitted the depositions ofSeth ARanlett tobe lead in evidence, being mete hearsay and belief, and not properly accounting fir the absence or loss of the note. 2.

ARPEAL from St. Louis Circuit Court. STATEMENT OP THE CASE. Gordon sued Scott & Mudge before justice Hull, on an account for rent. The case was tried by a jury and resulted in a verdict in favor of Gordon, upon which the justice rendered a judgment in favor of Gordon on the 16th of March, 1850. On the 25th of the same month Scott §• Mudge applied for an appeal and gave bond and made affidavit in due form of law.

Louis Court of Common Pleas. .STATEMENT OP THE CASE. Ia This was assumpsit in the St. Louis court of common pleas, by respondent against appoints, to recover from them the amount of a certain promissory note for $140 60, executed by William G. Ross, and alleged to have been paid thrbugh mistake, in the settlement of an account between W. G. & J. W. Ross and Burd, Rucker & Co., as part of the indebtedness of said W. G. & J. W. Ross.

Louis Court of Common Pleas. STATEMENT OF THE CASE. This was a suit, instituted before Justice Kitzmiller by the respondent, against the appeR lant, to recover wages alleged to be due him as mate on board the appellant, under the boat and vessel act. At the time of issuing the warrant, the appellant was in the hands of another officer, by virtue of a previous levy, and was subsequently sold, by order of the court of common pleas, by said officer.

Louis Circuit Court. STATEMENT OP THE CASE. - The appellant (Lackland,) on the 24th of May, 1851, filed in the St. Louis circuit court, a petition, stating, that on the 7th of November, 1848, be was duly elected and qualified as circuit attorney of the Sth judicial circuit of said Slate, and entered upon the discharge of the duties of said office, which duties he was still discharging.

Louis Criminal Court. The court did not err in allowing the counsel for fee State to ask the witness, Fisher, whether he saw any thing in Mathias Mosbacher’s hands, and what was his manner during certain portions of the difficuty.

Louis Circuit Court. STATEMENT OF THE CASE. The letters testamentary, bore date 27th November 1848. On 10th December, 1849, both parties appeared in court of probate, the executor then waived notice under the statute, and the plaintiff proved his claim, but offered no evidence, whatever, touching any prior exhibition of his claim. The probate court placed it in the sixth class, as a claim exhibited after the lapse of the first year of administration.

Louis Circuit Court. 1. There was no such notice of this claim given to the administrator, as is required by the provisions of the law upon the subject of administration: See Rev. Stats. 1845, title, administration, article 4, secs. 5 and 12, p 91, 93.

Louis Court of Common Pleas. Relies on the following: I.The court of common pleas erred in excluding John W. Malone from testifying on behalf of defendants below, when offered as a witness in their behalf. The court of common pleas erred in refusing to grant a new trial, for the following reasons: 1. There was no evidence to sustain the finding of the jury. 2. Refusal to give instructions asked for by the defendant below. 3.

Louis Law Commissioner’s Court. I. That the petition originally filed, does not set out or show oai its face any liability of Campbell to Wing. It does not sufficiently state the particulars of the plaintiff’s alleged demand, nor does it show by what right the plaintiff has to ask judgment against Campbell for ¿he debt or liability of a third party. II. The court below committed error in overruling the demurrer to plaintiff’s petition, and in refusings new trial.

it is insisted, upon a review of the evidence, that a new trial should have been granted, because the evidence is palpably against the verdict. All‘the evidence clearly shows that all the injury done was the result of the appellee’s own gross misconduct, and that the appellant used every caution to avoid doing the appellee’s horse any injury. It showB even more, that the injury claimed to have been done was not done by the appellant.

Louis Circuit Court. STATEMENT OE THE CASE. This was an action of assumpsit on an open policy of insurance, on an endorsement therein of insurance on goods shipped from New York for Boonville, specified to be shipped “via Ohio Riv^r,” (the plea was non-assumpsit.) Atthe trial the plaintiff proved the shipment of goods from New York by way of Buffalo and Toledo to Cincinnati; that when they arrived at Cincinnati they were in a damaged condition, and the amount of the damage,…

Louis Circuit Court. STATEMENT OP THE CASE. .At the November term, 3850, the respondents commenced an aetion against Boecker, -upon a demand for materials furnished by respondents to Boecker, used in the erection of a house on the southeast corner of Broadway-and Colunfoia streets, in the city of St. Louis. The demand on which the suit was brought had been filed as a lien against the property on which •the said house was erected.

Louis Circuit Court. STATEMENT OF THE CASE. This was an action for malicious prosecution, brought in the St. Louis court-of common pieas. The petition stated, that the defendant did falsely, maliciously and without probable cause, cause the plaintiff to be indicted; that the plaintiff was indicted, imprisoned, gave bail, was tried and acquited by the jury, without leaving the box, and asked damages for the injury sustained.

Louis Court of Common Pleas. An heir or distributee has a right to sue on the bond, as soon as be has been injured by a breach, and is not deprived of this right even when the probate court has power to redress the injury: Rev. Code 1845, p. 105; State of Mo. use of Adams & al. vs. Cambell & al, 10 Mo. Rep 727; State ot Mo. to use of Ingram vs. Rankin et al. 4 Mo Bep. 427; Chouteau, adin’r vs. Cousone, I Mo. Rep. 350; Gov. of Mo., &c. vs. Chouteau, 1 Mo.

ERROR ot St. Louis Court of Common Pleas. STATEMENT OF THE CASE. Bail brought an action in the court of common pleas against Barlow and others, recovered judgment, and the amount being made oil an execution by the sheriff, was brought into court. Various claimants appeared to the fund. The attorneys of the plaintiff claimed the amount of their fees. This claim was disposed of satisfactorily to all parties, and need not further to be noticed.

Louis Circuit Court. STATEMENT OP THE CASE. This was action of trespass vi et armis, brought by appellee against appellant in the St. Louis circuit court. Held: the arrest was lawful. The bankrupt discharge was no valid objection to the arrest. So also Wilman vs. Bush, 7 Metcalf 257, plaintiff arrested by sheriff after his discharge under the insolvent law. Held, that sheriff is not liable in trespass though he knew of his discharge before the arrest was made.

The only questions for the court, are: 1st Was the deed good, and sufficient to pass the title? 2d. Could parol evidence be given? In a sheriff’s deed, certainly, to a common intent only, is all that is required. The description in the deed need only be such that any one may find it, and that no other answers the description. The deed should be favorably construed for the grantee in the deed. 25 Wend. 402.

The only point decided by the circuit court wa3 that of jurisdiction; any formal defect in the petition will not be considered here. It is submitted by the plaintiff that chancery has jurisdiction in such cases, and that the jurisdiction of the county court as given by statute is accumulative and summary, and is not exclusive State constitution: Art. 5, secs. 6 and 8; 5 Mo.

Louis Court of Common Pleas. STATEMENT OF THE CASE. This was an action, Instituted under the New Code, November l?tli, 18-49 The [daiutiff, Fine, seta forth in substance that on the 13th day of February, 1849, a contract was made between him and William Atkinson, whereby he was to serve as pilot and on particular occasions as captian of the steamboat Sacramento in the Missouri river trade, from the 12th day of March, 1849, to the first day of November 1849, at the wages of…

Louis Court of Common Pleas. STATEMENT OP THE CASE. The appellants on the 18th of August, 1848, instituted a suit in covenant, at the September Term of the St„ Louis court of common pleas, and declared on a deed made by the appellee, dated May 2d 1846 to Ann M. Mosely, one of the plaintiffs.

Louis Circuit Court. STATEMENT OE THE CASE. Mary Eiley sued Clamorgan & Eippey in dower The premises are two lots in the city of St, Louis, one hundred feet front by one hundred and fifty feet deep, of which, however, the dowries husband owned only an undivided two thirds. The premises were improved and not susceptible of divisions. The dowress did not claim dower in the improvements, the premises being aliened by the husband in his life time.

Louis Court of Common Pleas. STATEMENT OF THE CASE. This was an action of assumpsit, brought by Odell & Frink against the defendants, to recover from them a sum of money paid to them by one Griffin. The defendants pleaded the -statutory plea.

Louis Circuit Court. Makes the same points that were made by the court below. This isa bill to enforce and foreclose a deed of trust upon personal property, and we contend. 1. That the equity and mortgage of S. P. Chase, upon this property is prior in point oí time to that of th; plaintiffs’. This will appear from the answers and from the evidence. 2. That they first came into possession of the property, thus uniting the possession with the right.

James P. Floyd, the plaintiff in error, was, at the February term, 1851, of the Cole circuit court, indicted for grand larceny.

1. The law fixes the class to which demands belong, against the estates of deceased persons, and by law all demands, legally exhibited Within one year from the date of the letters of administration, properly belong to the fifth class: Revised Code 1835 and 1845, title administrations, art. 4, secs. 1 and 5. 2.

statement of the case. Bell brought an action against Hoagland on the following instrument of writing. “Iteceivfid, Boonville March 14th, 1845, of Wm. O. Bell, three hundred dollars to be invested in lumber. (Signed) GEO.

The plaintiff and appellant insists that there are three positions, under either of which he is entitled to a specific performance of his contract with the defendant, and a reversal of the judgment of the court below. Fiist, That Gamer wag duly authorised as his, McGruder's agent, to sell said land, and as such agent did sell the same tp complainant. First then as to the appointment of the agent.

1. The answer of the defendant presents no legal bar to the plaintiff’s action. It does not pretend to show that he, Benton, ever paid the demand sued for, nor does it set forth such a state of facts as ought to discharge him therefrom.

' Í. It is too late to entertain a motion to strike out any defective counts or assignments of breaches in a declaration affer the jury is sworn, and particularly after the plaintiff has commenced stating the case to the jury. No notice was given of the intended motion. 2. The objection taken by the motion would not have been good after verdict for the plaintiff, therefore the motion should not have been entertained. 3.

Although the law requires a debtor to devote all his property to the payment of his debts and avoid, as fraudulent, any act that withdraws it from that object, yet a debtor may give a preference to any of his creditors to the exclusion of all others, and every application of a debtor’s property to the payment of his debts is valid, if he receive a fair value for it, although the very purpose and object in making such disposition be 1o prevent other creditors from…

The Cole circuit court, in this action, had jurisdiction of the lands, mentioned in the petition, lying in the counties of Boone and Callaway; and should have rendered judgment for the assignment of dower and partition of said lands. Rev. Statutes of Mo. p. 766, sec. 1, page 774, sees. 56, 57,58.

Dunnica sued Harrison as administrator of the estate of Granville P. Thomas, deceased, in the county court of Cole county, on a note given to Dunnica by Thomas for the sum of one hundred and thirteen thirty-eight one hundredth dollars, principal. Harrison, as administrator, filed an off-set against said note for the sum of five hundred, and forty dollars, alleged by him to be due Thomas by Dunnica for work and labor done for Dunnica by Thomas.

1. 'Ihe cirtfuit court erred upon the trial of the cause, as well in the rejection of evidence offered by the plaintiff, as in permitting the defendant to give to the jury irrelevant, illegal and incompetent evidence, though objected to by the plaintiff.

STATEMENT op the case. This was a suit instituted in chancery in 1817, by Browder as administrator of Jas. Heath’s-estate against Lay as administrator of Ashley’s estate and eleven others, widow and heirs of Ashley, and nine of whom were infants. The object of the bill is to subject certain lands to the payment of a portion of the purchase money of the same.

The appellants commenced a suit in the Linn circuit court for partition of two slaves named Charlotte and Price, alleging that they owned 14-15 and appellee 1-15 thereof; that appelkbe had possession and refused to permit them to use or control said slaves, and asking partition or sale.

The note sued on is a negotiable note, and the defendants cannot set off against the action the debt which the payee, Franklin, may have owed them at the time oi the assignment: Maupin & Jamison vs. Smth, 7 Mo. Rep., 402-3; 10 Earn & Cress. 138; Burroughs vs Moss, 4 Mo. Rep., 452; Collh^ ' vs. Waddle, Chitty on Bills, 126-7-8-9 130; 2 Barr’s Penn, S^p. 103; Hughes vs. Large, 3d Maul. & Selio., 95; Bailey on Bills, 5th ed., 156-7-8. 1.

1. The deed of the first of February, 1847, from William Gobin, to the appellant, vested in him, the said Levi Gobin, the right and title to the slaves in controversy; and bis title thus acquired, is not affected, or in any degree divested by reason of the condition annexed to this conveyance as expressed in the deed. Because the condition is repugnant to the conveyance, and therefore inoperative and void.

This'was an action of replevin, brought in the Buchanan circuit court, at the March Term, 1848, by Holliday vs. Lewis for the recovery of three mules, which were alleged to be the property of Holliday, and to have been taken and detained by Lewis, The mules were replevined fay the sheriffand delivered to Holliday. The defendants pleaded the general issue. The parties went to trial.

1. The complaint filed by Holliday against Doyon in this cause, contains such a statement of facts, if true, as Untitled him to the judgment rendered in Ms favor agaitist the defendant by the justice of the peace.

1. On the 22d September, A. D. 1847, final j'udgment went in favor of Valiant, plaintiff, and against Victor, defendant, and there that case ended, and the only conceivable way of keeping any branch thereof alive any longer, would have been to have continued the particular branch o£ the case sought to be kept alive. 2.

1. All the inhabitants of the township being interested in Dempsey’s bond, he could not be released therefrom, or from any of its provisions, without the unanimous consent of such inhabitants. The county court had no power to relieve the obligors against the payment of the interest contracted for, and the order made for that purpose is a nullity; Butler vs. Chariton county court decided in this court July 7th, 1850. 2.

<p>in ail cases arising under the 10th section of the act concerning fraudulent conveyances, the jury, not the court, are the triers, whether the transaction is fraudulent or not: Kuykendall to the use of Middleton, Perry & Co. vs. McDonald and Vinyard; page 416.</p>

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

t„ A failing debtor may lawfully give a preference in the payment of bis debts, and such’a dispositibn is valid, although the debtor’s object in giving the preference is to exclude from any share in his property, his unpreferred creditors, and therefore the court erred in refusing theplaintifl’s 3rd, 11th and 12th instructions. 2. A valuable consideration is not such a consideration only as is equal to the value of tho property sold.

This was a civil action brought in the Buchanan circuit court in the month of March, 1850.

1. The court erred m refusing the instructions asked by the appellants. Story on Partn. 158, secs. 102,102 a; 3 Kent’s Com; 40, 41, 42; 5 Black 210; Barrett vs. Swan 5 Shop. 180. 2. The court erred in giving the instructions asked by the respondent; Man vs. Lock 11, N.Hamp, R. 249; Gay vs. Bowen 8 Met. 100 Taunton Iron Co. vs. Richmond 8 Met. 434. 1.

This was an indictment for selling liquor without license. The defendant demurred, which being overruled, he excepted. The cause was then submitted to a jury. The circuit attorney introduced one James Wood as a witness who testified that, in August or July of this year in the county of Buchanan he bought of defendant a drink of wine and paid him for it, and also a drink of rum and paid him for it.

APPEALL from Henry Circuit Court. I. All the proceedings had in the county court after the settlement by complainant on the 37th day of August, 1848, commencing with the revocation of said settlement and ending with the judgment and execution, were void. 1st. Because there was no legal notice served upon the complainant: see Caldwell vs. Lockridge, 9 JMo. R, 362; Smith vs. Rice, 11 Mass. Rep. 507; Meddin vs. Platte County, 8 Mo. Rep. 238; Milan, adm’r vs. Pemberton, 32 Mo.

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

1.Mortgaged personal property, in possession of tho mortgagor, even after the mortgage has become absolute, may be sold under execution againtst the mortgagor; and in a contest between him and the execution purchaser, he is estopped from setting up the mortgage to defeat the execution sale: Stone vs. Laughlin, 5 Mo. Rep, 43; Meeker vs, Wilson, 1 Gall. Rep. 424, 425; Klein vs. Graham, 3 Caines’ Rep. 188; Stone vs. Scott, 18 John.

The only question in this case, is as to the sufficiency of the indictment The charge is for selling one quart of whisky and suffering the same tó be drank at the place of sale, without a grocer’s, dram-shop, or inn-keeper’s license. It was not necessary to negative a merchant’s license in terms; it was substantially done by charging that the liquor was drank at the place of sale.

Defendants in error, by-their guardian, brought an action of detinue-against plaintiff ih error for the recovery of certain slaves.. On the statutory plea tile cause was triod.at the-June-term, 1850.

This was an action brought in the Andrew circuit court, in March, 1849, by Thomas Dennis against Ephraim Myers and Oswald Roberts as administrators of the estate of Allen Ashley, deceased. The declaration states, that in August, 1847, the said Ashley sold to Dennis, the plaintiff, a certain negro slave named Harriet for the price of $410, which said slave was by said Ashley, upon said sale, warranted to be sound in body and mind, and a slave for life.

In order to constitute the conveyance of the horses, hogs, sheep, farming utensils and other personal property, by William Robarás to his son John Robarás, a valid and legal one, so far as the creditors of William Robarás are concerned, the possession of said property must have been delivered to and continued with him after the purchase of the same. 10th section, act concerning fraudulent -onveyances. 2.

1. It is a principle of natural justice that one who hires the use of property with a view to no other benefit except what may be derived from the use of it, shall not be liable for the rent after the propertjr has been destroyed without any fault on his part: (Rutherfords Inst. 127.) This principle made part of the civil law, was introduced into the Code Napoleon (article 1722) and the civil Code of Louisiana (art. 2267.) it is now the law of Scotland; (l Bells.

Appellant, administrator of Rachel McDonald, commenced a civil action in the Johnson circuit court against Isaac McDonald, since deceased, the object of which was to recover the worth of two negro slaves and their hire from the first of December, 1847.

1. The appellant was not served personally twenty days before the return of the writ, and therefore no judgment could be properly rendered against him at the return term of the court, this being a suit on a note. See as to this, practice in courts of justice, article 5, section 6. 2.

1. The indictment charges the absence of a license generally, and is sufficient: State vs» Brown, 8 Mo. R. 213; affirmed in Neales vs. The State, 10 Mo. R. 500. 2. The indictment negatives “any legal authority to sell” whatever. This general (8 Mo. R. 212) negation necessarily includes the negative contended for. 3.

t. This cause was not brought into this court in the time required byiho statute.- See Rev. Code of 1845; Practice in supreme court, sec. 21 p. 904. 2. If the appellant did cause to be filed a true and perfect transcript of the record and proceedings of said cause in this court, in the time required by law, the transcript filed is so defective that this court cannot see whether the circuit court rendered a proper or improper judgment. 3.

The contract between plaintiff and defendants did not constitute a partnership inter se. There was no participation of profits or Josses — no right to an account. Plaintiff could not make defendants account for sales of the lumber. He had no right to any money received from the sales of lumber, but only to one half of the lumber, or to damages for its non-delivery: I Wash.

Pinal judgment cannot bo entered on default in an action to recover unliquidated demands: U. S. Digest, vol. 2, page 641, sec. 67. Judgment on bond with a special condition must he entered for the penalty: U. S. Digest, vol. 2, page 624, sec. 107, In debt on a penal bond, conditioned for-the performance of covenants, the final judgment for the plaintiff is for the debt that is the penalty of the bond and for costs; and execution is awarded for the damages assessed.

The question in this case is as to the sufficiency of the indictment, It is framed on the 18th section of the 5th article of the act concerning crimes and punishments, R. S. 381. To constitute an offence under this section, three things are essential, first, a knowing and wilful opposition to a ministerial officer; second, in the execution of process, and-third, in a civil and criminal case.

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

1st. The finding of the facts by the court was against the evidence. 2nd. The court erred in its rulings of the law of the case, 3rd. The judgment is not warranted by the facts found by the court. 1. The appellant failed to present his case for review before the circuit court as required by the statute, Becent Practice Act, article 15. sec. 3; and he is not entitled to be heard in this court. 2. If mistaken in this, still the circuit court decided the law correctly. 3.

The court below erred in sustaining the demurrer in this case and rendering judgment in favor of defendants.

1. The court below erred in sustaining defendant’s demurrer. The different courts in the declaration state sufficient facts to show a liability on the part of the defendant fo account to plaintiff, which are all admitted by the evidence. 2.

At law, the deed of Polly To!son is not void on account of her supposed want of intellect, there having been no commission found before the deed was made. 2. The deed of such a person is not void, but is, by modern authors likened to the deed of an infant. 3. Even in equity the deed would not be avoided, if made for the benefit and advantage of Polly Tolson. 4. The instructions of the court were wrong, the cause being in a court of law, in which the deed cannot be avoided. 5.

On the first of January, 1847, Philip Crow, as agent for the respondents, Crow, McCreery & Barksdale, made an affidavit to the effect (among other things) that the appellant, Marshall, was about to remove his property out of the State, with intent to defraud, hinder and delay his creditors; that he had fraudulently conveyed his property so as to hinder and delay his creditors; that he had fraudulently concealed and disposed of his property so as to hinder and delay his…

The only question in this case is as to the sufficiency of the indictment. It contains two counts. The first charges the absence of a license generally, and is good: State vs. Brown, 8 Mo. K. 210; Neales vs. State, 10 ib. 498. The power of quashing indictments is a discretionary one in all case, and very rarely to be exercised in a case of this character.

1. The indictment does not charge the offence with certainty and precision, nor does it contain a complete description of such facts and circumstances as will constitute an offence under our statute, so that the court may know what judgment is to be pronounced upon conviction; nor does the indictment allege a plain, brief and certain motive of any offence punishable by law; nor is the offence, if any, set forth in the language of any statute: 1 Chitty Crim.

The offence charged against the appellant (Pugh) in the indictment, is not an offence punishable criminally, either at common law or under the statute. The charge is, that he tortured the horses of the prosecutor by tying brush and boards to the tails of the horses-There is no allegation that any damage or injury was done, but the simple act of tying brush and boards to the tails of the horses is relied upon as constituting the torture spolcen of in the statute.

Every consonant in- the alphabet, at the beginning of a word or syllable, or the termination thereof, has a separate and distinct sound. For instance, Fort and Ford; Hotson-and Hodson;Hnrd and Hurtj-.Hart and Hard; Hod and Hot: 7 Serg and Rawle 479; 4 Cowan R-, 148; 3 Caines oases, 219;2 N. Hampshire Rep. 538; 2 Spears S. C.46;10 East. R. 83. The only question in tills case is whether Hutson for Hudson is¡ a misnomer.

The indictment is bad, because it does not negative (hat the labor done on Sunday was the household office of daily necessity or other work of necessity or charity. The indictment negatives that it was a work of daily necessity, household office of daily necessity and of charity. But that is not sufficient, it should negative also that it was a work of necessity, without the qualifying word “daily.” It is very clear from the statute Eev.

<p>1. An Indictment on the 33d section of the act concerning slave*, (Rev. Stat. 1018) charging the sale of one pint of whisky, “without then and there having a written permit from the owner, ovorseer of said slave, or any one having legal authority over said slave, authorizing said sale,” is sufficient. “Written permit” to do the act may be equivalents» the “consent in writing,” and the want of such consent from the “owner, overseer of tho slave, or any one having legal authority ever said slave,” may be equivalent to the terms, want of consent of the “master, owner or overseer of such slave.”</p>

APPEALL from St. Louis Circuit Court. statement of the case. ©n the- 12th of August, 1812, the plaintiff was married to Thomas F. Riddick, with whom she lived as his wife until tile 14th of… Held: that so great an alternation in the relation of husband and wile, as the repeal of the partnership, which the Spanish law undoubtedly applied to the marriage state,- should be, by inference so remote, and I may say so forced and unnatural?

Munford was a stranger to the defendants and had no interest whatever, in the land mentioned in the contract which is the cause of this action, as appears by the contra^ itself it wau in the adverse possession of other persons. He entered into the contract, and commenced suit, against Carr and others, not from motives of charity or justice, but simply as a speculation; oí, to use a strong western phrase, as a Land Pirate.

This was an action, brought by Walker to recover of the city all the taxes beyond one-sixteenth of one per cent, per annum, paid by him from the year 1843 to 1849, inclusive, on real estate in the… Held: that he cannot, injnost cases be responsible: 10 Peters 137; 3 Moule & Lelwyn 35?; 2 Cowper 568, 816. That where an agent has been paid by mistake, and has paid it over to his principal, he is not liable.

Louis Circuit Court. The point made in the appellant’s instruction, which was not given by the court below, will first be considered: That if I)r. Emerson (who was the owner of… Held: that the above article of the constitution worked her freedom. 10. Natt vs. Rudelle, 3 Mo. Rep, 282, Mr. Justice Tompkins here settles an instruction, as to the consent of the master to the residence of the slave in a.free State, being necessary to work his freedom. —HfRachael vs. Walker,4 Mo.

I. The city was under no legal or moral obligation to provide for the insane; it was in the exercise of a mere charity, and not in the performance of any duty, that the appellant placed the insane… Held: that it could not be done. There was no evidence that the city, when its officers gave the alleged notice, offered to take back the patients. Indeed, they did' not.

The point presented in this case is, whether the freedom of the boy, Carter, taken off by the boat, is a defence to the action: 7 Mo. Rep. 428. Held: that the process, by which a slave vindicates his rights, is inapplicable to a free person; ergo, a slave ought to be confined to the remedy provided tor him.

That the court below erred in refusing instructions asked by defendant. Held: that the mere'act of throwing down and leaving down a fence, is of itself an injury sufficient to sustain an action of trespass, under the statute.

At the November term, 1851, the Marion circuit court granted a rule against the justices of the Marion county court on the relation of Charles D. Bourne, clerk of tbe Hannibal court of common pleas, to show cause why the account of said Bourne (as clerk) for are-cord book furnished by him for tlie use of said court of common pleas, should not be audited and allowed, as other legal demands against the county.

Louis Circuit Court. STATEMENT OF THE CASE. The plaintiff, Draher, sued the defendant in the Law Commissioner’s Court, on the following instrument: “Mr. Emanuel Eolker can, upon this my order, at any time receive from my kiln sixty-three dollars in lime. St. Louis 26th April, 1848.” (Signed) “John Schreiber.” On which was the following assignment: “Mr. J. Schreiber, have the good to' let Mr. John Draher have said lime.

The court below erred in the instructions given. The statute requires that the officers of the county, to-wit, the county court, take, in addition to personal security, a mortgage in tee from the principle on real estate, free from all liens and incumbrances, of double the value of the loan, if the loan be more than $100.

The actof 3847, see page 324, section 7, declares “that every person or co-partnership of persons in this State, who shall follow the practice of medicine for a livelihood in whole or in part, shall be a physician. The first countin the indictment charges, that Stephen F. Hale did practice medicine as a business, but fails to charge, that he followed the practice for a livelihood, either in whole or in part.

<p>ERROR to Mississippi Circuit Court</p> <p>Identity- of the land and possession by the defendant, may be proved by admission of defendant, or by other parol proof: 2 Greenlerff on Evidence, sec. 308.</p>

I. The main point in this case, is the same that was presented in Gnrno vs. The City og St. Louis, Í2 Mo. Rep, 414; Taylor and others vs. the same, 14 Mo. Rep., and Hoffman vs. the same, argued at this term and now under the consideration c>f this court. The authorities cited in the appellee’s brief, in Hoffman’s ease, are here' referred to, and it is not necessary to enlarge upon what has been said in that case. II.

On the 9th of September, 1836, James P. Shropshire and William P. Owsley gave their note or bond, under sea], to Joseph Conway, for the sum of eight hundred and eighty-five dollars, payable with eight per cent, interest from date, on the first day of August, 1838.

Charles R. Jeffries commenced an action of unlawful detainer against Hamilton before one Short, a justice of the peace in Franklin county for the possession of a piece of land.

<p>APPEAL from New Madrid Circuit Court.</p>

Louis Circuit Court. STATEMENT OF THE CASE. The plaintiff brought several actions of ejectment against the defendants, which were consolidated, and claimed the property in question, by virtue of a sheriff’s deed conveying the same as the property of one John Miller. The executions on which it was sold, issued out of the clerk’s office of the St. Louis circuit court, founded on transcripts of judgments and proceedings under them before a justice of the peace.

This was a suit on an account for goods, wares and merchandise, set and determined in the New Madrid circuit court Only one of the defendants, towit: Hunter put in an answer. As for Hamilton, the or,her defendant, the suit was undefended. Hunter, in his answer, denied that he had purchased the goods, or that they had been purchased by any person authorized by him to make purchases.

This is an action brought on a note executed by one C. D. Kanada, and defendant, as follows: “One day after date, we or either ofjus promise to pay to J. McDonald, adm’r of ihe estate of Huntington dec’d, sixty dollars and ninety cents, with ten per cent, interest, from date until paid. This 2nd day of January, 1844.

On the 30th March, 1848, William Maddox brought an action of assumpsit, with foreign attachment, against John E. Shropshire. On the same day the writ was levied on a negro as the property of said Shropshire, and a return not found made, as to the defendant. On the 28th of August, 1848, an appearance was made for Shropshire, by his attorney, Staunton Buckner.

That the plat, when filed by Glasscock, operated as a dedication of the lots in question, to the county sf Marion, for “public usesj” according to the provisions of the act of the legislature, entitled, “an act concerning towns and villages,” approved February 20th, 1835: See Rev. Stat. 1835, page 599, the law governing the case.

Louis Circuit Court — Ch’y. STATEMENT OF THE CASE. Jno. Held: because by statute the judgment attaches upon the land like a mortgage. II Mo. Rep. 77 — here the court hold that the object of the act is to make unrecorded deeds void, as to all subsequently acquiring an interest, who would be injured by tlie lailure to record it. This is the true doctrine.

I. The court is referred to the following cases in which corporations have been held liable for injuries committed in the exercise of… Held: that a town was liable for digging down a street in front t£ the plaintiff’s house. II. Hut the claim of the plaintiffj in this case, may be sustained upon the principle admitted by tills court, in the case of Gurno vs. St. Louis, 12 Mo. Rep. 414, that a municipal corporation is liable for all illegal acts done under its authority.

Louis Court of Common Pleas. STATEMENT OF THE CASE. This was a suit by attachment, commenced July 2llrd, 1850, for work and labor done and materials furnished.

Louis Court of Common Pleas. STATEMENT OF THE CASE. Thin was a suit ill chancery, and the material facts are as follows : On the 29th of Jilne, 1836, Philip McGovern and Hugh O’Neil were appointed administrators of the estate of Mary Reilly, and jointly executed an administration bond, as principal-, with John Finney, John Shade and the complainnnt Dobyns as security, conditioned in the usual form, that said McGorern and O’Neil as such administrators, should faithfully…

1. The Constitution declares, “that all property subject to taxation in this State, shall be taxed in proportion to its value: Const, of Mo., Art. 18, Sec. 19. This is an absolute rule, controlling the Legislature in the exercise oi the taxing power, and from which it cannot depart.