Volume 16 — Missouri Reports

Louis Circuit Court. This was ejectment, in tbe St. Louis Circuit Court, against Kimball, tenant of tbe Lindells, for a piece of ground lying in tbe city of St. Louis. It was tried at tbe November term, 1847, and there was a verdict and judgment in favor of tbe-defendant.

■Appealfrom, St. Louis Circuit Court. This was ejectment, in the St. Louis Circuit Court, brought by Cutter on the 1st of November, 1845, for a tract of one bj forty arpens of land in the Common Fields adjacent to St.. Louis, stating it to be the same tract formerly conceded tot Louis Lirette and by him sold to Jno. B. Yifvarenne, being; U. S- survey number 1479 in said Common Fields. Childress was the tenant of Bryan Mullanphy, of a lot of twenty-five by one hundred feet.

Louis Circuit Court. contended that a mother is not bound to support her infant children, when they hare property of their own, no matter what her circumstances may be, though it… Held: that whether tbe mother in her life-time charged the children with board, or not, it will be allowed to the estate, after her death. The court improperly allowed interest on the demand. 1 Munford Ya. Rep. 119. 5 Rawle, 328. The instruction asked for by the appellant was properly refused: ; 1.

jError to St. Louis Circuit Court. This was a petition for partition. The rights of the parties depend upon the will of William C. Carr. The following is a' copy of the clause affecting the questions decided : “ In making a will, I am influenced by the desire to effect two objects : ££ Tbe first of which is, to proyide a suitable support for my wife and minor children, during her widowhood and their minority. ££ Secondly.

Jlppeal from St. Louis Court of Common Pleas. On the 23d of June, 1850, the appellants filed a petition in the Court of Common Pleas of St. Louis county, stating, that William Stokes died seized and possessed in fee of a lot of ground in the city of St. Louis, fronting forty feet on Main street, by one hundred and forty feet deep, and particularly describing its metes and bounds.

Louis Circuit Court. The opinion of the court sufficiently states the facts. contended that the general law of 1845, authorizing the county courts to declare towns incorporated, is constitutional, because the duties of the county court under it, are only judicial. The law of 1845 was originally enacted in 1808. Under that law St. Louis, Carondelet, St. Charles, Ste.

Louis Court of Common Pleas. On the 10th of October, 1851, the respondent filed a petition in the St. Louis Court of Common Pleas, stating that on the 20th of August, 1851, he paid the sum of one hundred and forty one 67-100 dollars for rent of rooms, from the 13th of March to the 13th of August, 1851, for the use of the officers and suitors in the Court of the Law Commissioner of St. Louis county, and that during the time above mentioned, he was the Law Commissioner of St.…

Louis Court of Common Pleas. insists that tbe underwriter “is only liable when tbe damage sustained is, in itself, of an extraordinary nature, and bas been caused by tbe direct and violent operation of one of tbe perils insured against.” 2 Arnold on Ins. 756. Unless tbe degree of a peril and its effect be both extraordinary, tbe assured bas no claim for indemnity. 1 Pbill. on Ins. 245, (ed. 1823,) 625, (ed. 1840.) Thompson v. --, 3 Taunt. 227.

Louis Court of Common Pitas. I. Judgments of sister states have the same force and effect in all the other states of the Union, that they have in the state where rendered. 1 Greenleaf Ev., section… Held: that the authority to an attorney to appear in the courts of that state, cannot be contra-dieted. Smith v. Bowditch, 7 Pick. 187. So, also, in New York, tbe record of a domestic judgment, showing an appearance by attorney, cannot be contradicted, 2 Hill 66.

■Appeal from St. Louis Circuit Court. This was an action in 'detinue for a slave named Austin. John C. Rogers, Hugh Rogers and Lowe, (composing the firm of J. 0. Rogers & Co.,) and also the plaintiff, McDer-mott, were contractors on the James River Canal in Virginia, 1841 and 1842. The former becoming embarrassed, sold various slaves to various creditors, among others, to the plaintiff : a bill of sale for four negroes (among them Austin) for $2000, was made to Rodk.

1. That Shelton and Heatherly are to be confined, strictly, to fractional section thirty-four, as laid down upon the plat in the register’s office, from the field notes made by the United States surveyor, at the time that part of the country was sec-tionized in 1817. 2. That the appellees can receive no benefit from alluvion adjacent to fractional section thirty-four, formed prior to their purchase from Labaddie in 1844.

Louis Circuit Court. The o pinion of the court contains a sufficient statement of the facts. I. Robertson, at the time of the sale by the sheriff, being in possession of the premises under a contract of sale, had a legal interest therein, saleable on execution. Rev. Code of 1845, sections 2 and 66 of ch. 61, p. 475, 488. Benton v. Mullanply’sl&xx. 8 Mo. R. 650.

Jippealfrom the Law Commissioner’s Court of St. Louis County. Tbe plaintiff sold to the defendant a horse, for the sum of fifty dollars, and received at the time in payment, a yoke of oxen valued at forty dollars, the remaining ten dollars to be paid at a future time.

<p>1. Under the 35th section of the act concerning boats and vessels, (R. fi. 1845,) one of several part owners of a steamboat may sue in the namo of the boat.</p>

Louis Law Commissioner’s Court. This action was brought under the “ Inclosure” act, R. S. 1845, p. 575. Section 4 of that act clearly permits a person to justify the killing of another’s animals that are trespassing upon his land, upon proving that it was inclosed within a lawful and sufficient fence, and in such case only. The instruction of the court below was, therefore, erroneous.

Louis Court of Common Pleas. Sexton sued Monks under the New Code, alleging, in his petition, that on the 7th of February, 1849, the defendant, without leave, and wrongfully, took the following property of. the plaintiff and has not returned the same, viz : £i one roan mare of the value of $75, and one chesnut sorrel mare of the value of $75, by which plaintiff says he is damaged to the amount of $200, for which he asks judgment.” The defendant, in his answer, denies- that…

Louis Circuit Court. This was an action originally instituted before Justice Spalding, for use and occupation of certain premises by George Stoops, rented to Charles Devlin, from the 6th November, 1844, to the 6th of September, 1846, twenty-two months, at $4 per month, making $88. There are other items in the account, but these were abandoned by the plaintiff, and the sole question tried was, whether rent was due.

«Appeal from St. Louis Court of Common Pleas. On the 18th of July, 1851, the appellants instituted a civil action in the Common Pleas Court of St. Louis county. Then’ petition charged the respondent with executing a note annexed to the petition, and prayed judgment against him, for the amount of the note. The note was in the words and figures following, viz : “$1,318 98-100. Philadelphia, Aug. 14, 1850.

Louis Law Commissioner’s Court. contended that the transcript of the record in the suit between Eallon and Harrison was competent, for the double purpose of showing that a verdict had been rendered for Harrison in that suit, and tho amount of costs expended by Eallon in its prosecution. It was not offered to prove title in Harrison.

Louis Law Commissioner’s Court. The respondent, Hunt, sued the appellant, Hernandez, on account for $90, before Justice Johnstone, on the Sd of January, 1851. Justice Johnstone gave judgment for the plaintiff. Hernandez prayed an appeal to the Law Commissioner’s Court, wbick was duly perfected, and a transcript deposited in the office of the law commissioner, on the 25th of July, 1851, but not filed, on account of the non-payment of the fee of one dollar.

Louis Circuit Court. The facts are sufficiently stated in the opinion of the court. I. The Circuit Court had no jurisdiction of the parties in the case of Boyd vs. Coleman, garnishee of Wooley. Coleman was alive, but Boyd being dead when execution was issued summoning Coleman as garnishee, was not before the court for any purpose. No judgment could have been rendered against Boyd.

<p> Jippeal from St. Louis Law Commissioner’s Court. </p>

<p>1. "When a party has filed one interplea in an attachment suit, and on the trial has talcen a nonsuit, it is no error for the court to strike out a second interplea filed by him in the same case, without leave of court*</p>

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Court of Common Pleas. This was an action of ejectment, brought by Harrison in the St. Louis Court of Common Pleas, on the 29th of August, 1848, against Francis W. Page,for two by forty arpens of land, lying in the Grand Prairie, about three miles from St. Louis. It was tried in October, 1850, and resulted in a verdict and judgment for the plaintiff, for some two or three acres of the eastern end of said tract.

On the 23d day o£ February, 1846, the appellant, Cravens, filed his bill in chancery, alleging that Pettit, the respondent, claimed a right to a confirmation, prior to the year 1832, of a tract of land containing about 640 acres, lying in the counties of Madison and Wayne, in this state ; which tract was generally known as the “ Cedar Cabin,” but which claim had been rejected by the board of commissioners ; that after the rejection of said claim, the appellant, Cravens,…

Louis Court of Common Pleas. 1. That tibie motion to strike out should have been overruled. If the answer was no defence, the objection should have been taken either by demurrer or by motion for judgment for want of answer. Laws of 1849, p. 80, sec. 9. 2. That the defendants should have been allowed the loss sustained by them, in consequence of the untenantable condition of the premises.

<p>1. It is erroneous to take judgment by default against a defendant, where there has been a judgment of non-suit against the plaintiff which the record does not show to have been ever set aside.</p>

Louis Court of Common Elms. I. The “first paragraph of the plaintiff’s instruction is erroneous, because it assumes that the boat was necessarily lia-bie, if the captain undertook to carry and deliver the bank notes and failed to deliver a part of them, although the petition does not charge any consideration, and the testimony does not show any. II. The second paragraph is erroneous : 1.

Jlppeal from St. Louis Court of Common Fleas. As this ease was not decided upon its merits, it is not thought necessary or useful to insert a statement of the facts, or the briefs of counsel. It was argued by Messrs. Glover & Campbell and R. M. Field, for appellants, and Todd & Krum and E. Bates, for respondent.

Louis Court of Common Pleas. I. The court below erred in admitting tbe written agreement, dated May 1st, 1844, in evidence in this action, in indebitatus assumpsit, on the common counts. II. The first instruction for the plaintiff ought not to have been given. The written agreement was, by this instruction, declared to be in force, and the jury was authorized to find a verdict in general indebitatus assumpsit, for the services the plaintiff had performed under said covenant.

Louis Court of Common Pleas. I. The court erred in admitting the testimony of Tlieron Barnum, as he and plaintiff were privies in estate. Guy v. Hall, 3 Murph. 150. Hart v. Horn 2 Camp. 92. 7 Moore, 807. Lewin on Trusts and Trustees, 18 Raw Lib. 22, p. 10. Ib. p. 11. II. This is not a case where the admissions of a grantor are received as against himself.

Jlppeal from St. Louis Court of Common Pleas. At the February term, 1849, of the St. Louis Court of Common Pleas, the appellant recovered judgment against John H. Tice, for the sum of four hundred and nineteen dollars and eighty-five cents. On this judgment, execution issued returnable to the September term of the St. Louis Court of. Common Pleas, and William Iff. Pritcbartt was summoned as garnishee.

•Appeal from St. Louis Court of Common Pleas. On the 11th day of July, 1851, Elbridge Gr. Clark, one’of the constables of St. Louis'township, levied on the steamboat Daniel Hillman, in his township, under warrants from a justice of the peace, on lien claims under the statute.

Louis Court of Common Fleas. Barnes, to the use of Hayes, brought an action in tbe St. Louis Court of Common Pleas, against Webster, on a penal bond for $1,748, dated April 3d, 1844, reciting that one Ward bad brought a suit by attachment in the United States Circuit Court, against said Barnes, and conditioned that if the said Ward should prosecute his suit with effect, without delay, and should pay all damages that might accrue to the defendant, Barnes, or to any garnishee,…

Louis Circuit Court. John Blass, the appellant, brought suit in the St. Louis Circuit Court, against the steamboat Robert Campbell, under the statute concerning boats and vessels, for damages for injuries done to the appellant.

Louis Circuit Cotcrt. No further statement of the case is necessary, than is contained in the opinion of the court. 'The allegation that the defendant“ made his note by the style .■¡of J. H. & W. R. Adams, by W. F. Adams, attorney, and thereby promised,” &c., is sufficient in law, if true in fact, to charge the defendant as maker. The meaning of these words .is matter of evidence. 2 Smith’s Lead. Cases, 807.

•Appeal from St. Louis Circuit Court. I. The appellants insist that the cause was not liable to be tried, or rather that it should not have been tried at the March term, to which it was returnable.

Louis Circuit Court. This was ejectment for a small strip of ground fronting on Front street, in St. Louis, described in the petition as being two feet seven inches in width on Front street, against Smith, a tenant of John H. Gay, brought in November, 1849.

Jlp'pe.al from St. Louis Circuit Court. On the 19th day of April, 1849, McKee leased certain premises situated in St. Louis, to one Frederick Angelbeek, for a term of years. Held: in law and equity, that the mortgage is a mere security for the debt, and only a chattel interest. The mortgagor continues the real owner of the fee. 4 Kent, 161. He has not the legal estate. Laws 1845, sections one and three, and following. In Crinion v. Nelson, 7 Mo.

Louis Circuit Court. This was an action of assumpsit, instituted by Silas Reed, tbe defendant in error, in tbe St. Louis Circuit Court, at tbe November term, 1844, against Cyrus Gr. Hoyt and Apollo W. Sterling. The declaration was for money lent and advanced, money bad and received, and for money paid, laid out and expended.

Louis Circuit Court. This was an action of trespass, by the plaintiff in error, against the defendant in error, for taking personal property, and the questions which arise upon the record involve the construction of two deeds, under which the plaintiff claimed the property taken, the case turning upon the question of his title, under the deeds, to the property; the plaintiff submitted to a nonsuit, under the instruction of the court that “upon the whole of the evidence in…

<p> Jlppeal from Franklin Circuit Court. </p>

Louis Circuit Court. 1. After tbe expiration of tbe term for wbicb tbe premises were let, tbe fixtures could not be removed, but became a gift to tbe landlord. Poole’s case, 1 Salk. 368. Holmes v. Tremper, 20 J. R. 29. Lyde v. Russell, 1 B. & Ad. 394. 2 Smith’s L. C. 110. Fitzherbert y. Shaw, 1 H. Black, 258. 2 Smith’s Lead. Cases, Am. ed. p. 194, and notes, p. 208. 2.

•Appeal from St. Louis Circuit Court. On the 30th of September, 1842, the defendant recovered judgment against the plaintiff and his securities, Benoist Mareschal and George Shoults, for the sum of twelve hundred and five dollars and ninety-eight cents, together with the costs of the suit. On the 13th of September, 1845, the board of trustees of said town enacted an ordinance in words and figures, as follows, to wit: “ No 81.

Louis Circuit Court. The opinion of the court contains a sufficient statement of the facts. 1. Judgment could not go against the administrator of the bondsman for damages adjudged against the boat. The authority for so rendering a judgment is purely statutory in any case, and it can only be rendered in a case within the statute, in terms. The case of the death of one of the bondsmen is not provided for. It is a casus omissus.

Louis Law Commissioner’s Court. 1. It is not true, as assigned for error, that there is no allegation of value in the respondent’s petition. 2. If there were no allegation of value, the defect is cured by the verdict. See Rev. Stat. act to regulate practice at law, article 6, section 7, page 827. 3. As to the regularity of the proceedings on the bond, see New Code of Practice, article 8, section 9.

•Appeal from St. Louis Circuit Court. insisted that tbe new code of practice abolishes the writ of scire facias, as a remedy to enforce a mechanic’s lien. He based his argument upon article one, section one ; article five, section one ; article six, section one ; article seven, section two, and article thirty, section four. This writ does not come within the exceptions in article thirty, section six.

Louis Circuit Court. Ou November 6th, 1847, James Kennedy filed his bill of complaint in the Circuit Court for the county of; St. Louis, sitting in equity, against the defendants, setting forth that Elisha Hall, Judson Allen and Joshua J. Childs, by their deed dated May 15th, 1846, conveyed to John R. Hammond, certain ground, with a steam saw mill thereon, in the city of St. Louis, leased by them from William Chambers for ten years, together with the lumber, tools, &c., on…

Jlppeal from St. Louis Law Commissioner’s Court. This was a civil action to recover instalments assessed on stock, subscribed by Clemens. The petition alleges that the plaintiff is a corporation, duly organized under the act of February 27th, 1851.

Louis Circuit Court. Tbis was a civil action., commenced by Soulard on tbe 3d of November, 1849, against Margaret B. Lane and others, to foreclose a deed of trust and to subject the trust property to the payment of the purchase money.

Louis Criminal Court. I. The appellant insists that he was entitled to his discharge upon the statement of the case. See Rev. Stat. page 856, sections 9, 10 and 11. That when the statute so provides, any condition attached is a violation of the discharge. II. That the court has no power to impose costs, except in the cases contemplated in the eleventh section, i. e., where both parties are in court, but there is no complaint.

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

<p>1* The Supreme Court will presume that the court below decided correctly,, unless the record shows the contrary.</p>

Louis Criminal Court. I. The state could not introduce the statements of co-defendant, Schroeder, not under oath, as those of an accomplice, and afterwards make a witness of said co-defendant. II. In larceny, there must be a taking, and although the taking may be presumed from the possession, yet no possession was proved against the defendant Clump. HI.

<p>1. Stats v. Roberts, alias ward, affirmed.</p>

Louis Criminal Court. The court did not err in sustaining the demurrer to the special plea of defendant. There is no provision in the law for the encouragement of home or domestic manufactures of this character, as assumed in the plea. The sale of intoxicating drinks is a matter of police regulation, and it is deemed useless to refer this court to authorities, to prove that the state has the power to license, tax, and suppress the sale of such commodities.

Louis Criminal Court. contend that the evidence in this case does no't sustain the indictment, and that the verdict of the jury is erroneous, even if the instructions were proper. There was no proof of violence or intimidation, one of which must exist to constitute the offence, in either of its three degrees known to the statute. Rev. Stat. sec. 25, p. 358.

Louis Criminal Court. 1. Tbe appellant insists that tbe court below erroneously admitted a letter, purporting to have been written by tbe defendant to a third person, in evidence before tbe jury. This letter formed no part of tbe case, and nothing in it was material to tbe trial of tbe defendant. It was calculated to prejudice tbe jury against tbe defendant, and was considered so revolting in its terms and character, that tbe jury retired to read it. 2.

¡Appeal from Cooper Circuit Court. I. The equity of Tompkins, under his deed of trust, which was not recorded until after Brown’s execution came to the hands of the sheriff, was extinguished by the sale under that execution, at which Gamble purchased. That deed of trust was thenceforth void, and Gamble cannot invoke to his relief the previous equity of Tompkins under it, Yide Digest, 1835, tit. Conveyances, p. 123, secs. 30, 32. Hill v. Paul, 8 Mo. 479.

The judgment confessed is not void, even against tbo non-confessing partner; but at most, is only voidable upon good cause shown. Green v. Beals, 2 Caine’s Rep. 254. Mot-tenx v. St. Jhibin, 2 Black. Rep. 1133. Denton v. Noyes, 6 Johns. Rep. 295. Wood & Oliver v. Ellis, 10 Mo. Rep. 383. A good defence to the demand on the merits is always part of the good cause for setting aside a judgment alleged to have been confessed without authority.

1. It was competent and legal for Morrison, in his defence to the action, to show that the note sued on was obtained from him without consideration, or that the consideration of the note, if any, had failed, and consequently the court erred in rejecting the evidence offered by him to the jury, to prove that Robert Brent had no right or title to the negroes for which he had giren the note. Digest 1845, tit. Justices’ Courts, article 5, sec. 14. 6 Mo.

<p> •Appeal from, Polk Circuit Court. </p>

The facts are sufficiently stated in the opinion of the court. I. The widow Brown was a competent witness to prove the unsoundness of the slave, because, 1. She was not interested in the event of the suit; she had received all her dower interest in the estate, and it was wholly insolvent. 2. She was competent, even though interested, and so would her husband have' been, under the provisions of the practice act of 1849, had he been alive.

Jlppeal from Jackson Circuit Court. Plaintiff, as administrator, &c., sued defendant in the Jackson Circuit Court, on a note executed by defendant to the deceased, for $1522 50, dated August 1st, 1845, and payable three years thereafter.

<p> Jlppeal from Crawford Circuit Court. </p>

<p>1. One tenant in common may sue another under the new code of Practice of 1849’^ without resorting to the action of account under the statute of 2845.</p> <p>2. A. and B. own a ferry in common, with an agreement that each shall he entitled to one half of the proceeds, after paying all expenses. B., in good faith and for s valuable consideration, leases the ferry out to without the consent of A. Held, A. cannot recover- of B. one- half of the proceeds received by Ch hut only one half of the rent reserved by B.</p>

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

It was competent for the County Court to entertain jurisdiction of the complaint against the defendants, as made by the plaintiff, Powers. Rev. Stat. 1845, tit. Courts, p. 331, 332, sections 13,14. Ib. tit. Administration, sections 2, 4, 5, 9, 10, 11 and 45. Art. 7, same, title and book, section 9, p. 105. Eng. Ecc. Rep. vol. 1, 78, 79, 81, 82. 15 Mo. Rep. 313, 314 and 315, Overton v. McFarland. The court below did right in dismissing the cause.

.Appeal from Buchanan Circuit Court. The transcript of the record of the subpoena, issued from the office of the clerk of the Clinton Circuit Court, and which, was served on the defendant, James Hamilton, was legal and competent, and tended to prove, in part, matters material to the issue before the jury.

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

•Appeal from Saline Circuit Court. The Circuit Court erred in permitting the defendants to give to the jury irreleyant and illegal testimony, particularly with reference to the unfitness and defects of the horse power furnished them by the- plaintiff. 1 Saund. 820, note 4, and other notes therein referred to. 2 Bailey’s Rep. 82-4, Hice v. Sims and Worthy. Campbell v. Jones, 6 T. R. 573. 1 H. Black. 273. Doug. Rep. 471. 3 Penn. Rep. Shaw v. Turnpike Co. p. 445. 2 Penn.

<p>1. The Supremo Court cannot exercise original jurisdiction by ordering a chancery case, on appeal, to be referred to a commissioner. Where the court is nob satisfied from the evidence in the bill of exceptions that the decree of the court below was correct, and no account was taken, so that it is impossible to state what errors were committed, the case will be reversed and remanded, with directions to the court below to have an account stated between the parties.</p>

The opinion of the court contains a full statement of the facts. contended' that in the settlement between H. L. Boon and John Miller, there was a manifest mistake in the calculation of interest; that this mistake was one of fact, and not of law > that it could not have resulted from a wrong construction of the agreement under which the settlement was made, but must have resulted from accident or inadvertence, and therefore should be relieved against by a court of equity.

1. This appeal was taken from the -County Court upon its refusal to set aside the previous order of sale, and though the statute allows an appeal from orders for the sale of real estate, yet it does not allow an appeal in a case like the present. (See R. C. 106,) and on this ground alone the court did right in dismissing the appeal. 2. The County Court did right in refusing the motion of Shields to set aside the order of sale.

•Appeal from, Clinton Circuit Court. The courts in this state will interfere in relation to the title to land which has been granted by the sovereign authority. Bird et al. v. Ward & Cravens, 1 Mo. Rep. 281. Stephenson v. Smith, 7 Mo. 610. Groom v. Hill, 9 Mo. 323. Ott v. Soulard, 9 Mo. 581. O’Hanlon v. Perry, 9 Mo. 804. Pettigrew v. Shirley, 9 Mo. 683. Allison v. Hunter, 9 Mo. 749. Huntsucker v. Clark, 12 Mo. 333.

The wife of Moore is not, as the widow of Horeb Wells, entitled to dower in the land in controversy, because, 1. Horeb Wells was not, nor was any other person to his use, seized of an estate of inheritance in the land at any time during his life. 2.

1. If the contract stated in the pleadings and upon which the plaintiff sought to recover, was in fact made with the plaintiff and another person, instead of being made with the plaintiff alone, it of course defeated the action, and such was the direction the court gave to the jury. 2.

contended that the law governing common carriers does not apply. The defendant, though a common carrier, took’ upon himself, by his express contract, a duty greater than the law would impose, and having done so for a legal consideration, he cannot set up the acts of God as any excuse for his non- compliance with the contract. He onght to have guarded against such contingencies in his contract.' Chitty on Contracts, 784. Thompson v. Miles, 7 T. R. 884.

By bringing tbe suit for the value oí the slave, Garth abandoned his property in her, and by the judgment in that suit, or at any rate, by the judgment and satisfaction of the same, the title to the slave, Celia, became completely vested in Everett. 2 Kent, 886-7. Foreman v# JVeilsoji, and JYorrill v# Corley, 2 Rich. S. 0. Eq. Rep. 288. 1 Rawle, 121. 4 ib. 285-6.

Error to Jackson Circuit Court. contended that, under section 12 of article T of the new code of practice, the set off was admissible.

•Appeal from Crawford Circuit Court. insisted that the sheriff’s deed was certainly competent evidence, because, with its recitals, it is, by express statute, made evidence of the facts therein stated. Rev. Stat. p. 484, sec. 49. It was not necessary to offer the execution. insisted that the court properly excluded the execution from the jury, because, 1. There never had been any execution issued by the justice who first rendered judgment, and a return of nulla bona.

insisted that, admitting the allegations in defendants’ answer to be true, plaintiff was entitled to a judgment for the principal of his debt; and cited, Connor v. Hackley, 2 Met. 613. Bradley v. Corel, 4 Cow. 349. 5 N. H. 294. 15 John. Rep. 505. 5 T. R. 471. Selwin N. P. 1118. 4 Bingham, 309. 5 ib. 132. No new contract was proved.

The opinion of the court sufficiently states the facts. insisted that the new bond was prima facie a payment of the trust debt and not a mere change of security, and therefore extinguished the trust debt. Hutchins v. Olcutt, 4 Verm. 550. Bank of Commonwealth v. Ray, 7 J. J. Marshall, 272. Curtis v. Ingham, 2 Verm. 290. If such was not the prima facie effect of the new bond, yet the evidence shows that this was the intention of the parties.

•Appeal from Andrew Circuit Court. The action on the case for injuries to land can only be maintained for a malfeasance, misfeasance or nonfeasance, and the appellant has been guilty of neither. 1 Chitty’s Plead. 7 Am. ed. 95, and note 206 ; also, page 150. Tidd’s Practice, 4.

1. The title of Soulard, under whom plaintiff claims, before the decree of confirmation, consisting of a concession and survey, was such a title as was protected by the treaty of cession and by the law of nations. This is well settled by judicial decisions, independent of congressional legislation. Ee~ lassus v. United States, 9 Peters, 117. Chouteau’s heirs v. same, ib. 137. Soulard’s heirs v. same, 10 ib. 105. It could be sold under execution.

The facts sufficiently appear in the opinion of the court. contended that the action for money had and received was properly brought. Wiseman v. Lyman, T Mass. 286. Chitty on Contracts, p. 605, note 1. Hull v. Marston, 17 Mass. 579. Claflin v. God-frey, 21 Pick. 6. Mason v. Waite, 17 Mass. 562. Eddy v. Smith, 13 Wend. 490. Kane v. Paul, 14 Pet. 38. Ue Valengin>s Administrators v. Duffy, 14 Pet. 282. Moses v. McFerlan, 2 Burrows, 362..

<p> Jlp'peal from ^Andrew Circuit Court. </p>

The opinion of the court contains a sufficient statement of the facts. 1.

Jlppeal from Crawford Circuit Court. The facts are sufficiently stated in the opinion of the court. Held: that “ if a preemption right, under the laws of the United States, is secured by the fraudulent practices either of the party himself or the officers of the general government, a court of equity will afford redress to the person injured.” “ Such interference does not proceed upon any assumption of a right on the part of the courts to…

for the State, contended, 1. That a motion does not lie to quash an indictment for a felony. 1 Chitty’s Crim. Law, side paging, 299. State v. Rector, 11 Mo. Rep. 28. 1 Ch. PL 300. 2. That the indictment was sufficient. Sec. 24 of art. 3 of act concerning crimes and punishments, R. S. 1845.

If the evidence corresponds with the allegations, in respect to those facts and circumstances which, in point of law, are essential to the charge, it is sufficient. 1 Chitty’s Crim. Law, 298. The allegation is the selling one pint of whisky. The circumstance essential to the charge is, the selling of any quantity. The first section of the act concerning “ Groceries and Dram Shops” prohibits the sale of any quantity of intoxicating liquors without license.

Louis Circuit Court. This was an ejectment for a lot south of Mill Creek, in Eran® and Langham’s addition to the city of St. Louis. On the trial, the plaintiffs below, defendants in error, offered tbe following documents in evidence : - 1. An order of the St. Louis Court of Common Pleas incorporating the town of St. Louis, dated November 9, 1809, a copy of which may be found in the report of the case of Eberle v. Public Schools, 11 Mo. Rep. 248. 2.

Richards & Robinson sued Levin by attachment, alleging in the affidavit, that Levin had made and was about to make a fraudulent disposition of his property, so as to hinder, delay and defraud his creditors. Issue was taken by defendant on the affidavit, which was tried before the court sitting as a jury. The plaintiffs read in evidence a deed of assignment made by Levin to trustees for the benefit of certain creditors, two or three days before the commencement of this suit.

Jlppeal from Washington Circuit Court. The Circuit Court had no right to dismiss the appeal from the justice, on account of the smallness of the amount sued for.