Volume 17 — Missouri Reports

The opinion of the court contains a sufficient statement of the facts. 1. Tbe deeds of partition read in evidence were in tbe proper legal form to consummate a full and perfect partition between joint tenants or tenants in common. 4 Kent, 6, T, 8, 864, 369. 4 M. & S. 178. 10 J. R. 456. 18 ib. 79. Cbitty’s Blackstone, book 2, page 324.

<p>1. It is no defence for an endorser who is sued upon a note, that he endorsed it upon the express condition that it should also he endorsed by another person, when it does not appear that the plaintiff knew of this condition.</p>

Charles Circuit Court. The rejection of the claim of Griffith by the register was conclusive against his rights. The further proceedings, after this rejection, and after the expiration of the preemption laws, were without authority, and the patent issued thereon is void. Morton v. Blankenship., 5 Mo. Rep. 856. Groom v. Hill, 9 ib. 323. O’Hanlon v. Perry, ib. 809. Perry v. O’Hanlon, 11 ib. 589. Pettigrew v. Shirley, 9 ib. 687. McDaniel v. Or-ton,, 12 ib. 12.

Frangois Circuit Court. Mistakes of this kind, when it was the manifest intention of the party to put the truth of the affidavit fairly in issue, are not governed by the same strict rules applied to pleas in abatement at common law. The statute allowing this plea is remedial, and it should not be regarded with the aversion that pleas in abatement were. It differs materially from a plea in abatement, and is styled by the statute a plea in the nature of a plea in abatement. 1.

This was a suit begun by respondents, as administrators, upon two notes, dated June 16, 1846, made by the appellant to their intestate, John Perry, in his life time. The appellant set up in his answer, by way of offset, a claim for the rents of a saw mill.

Error lo Marion Circuit Court. 1. It was obviously the intention of the legislature, in requiring a bond, to secure to the defendant the amount to be enjoined. Yet, it could not have been intended, that the liability of the obligors should depend upon the rendition of a decree, upon the dissolution of the injunction, expressly awarding to the defendant the amount enjoined, for this court had decided that no such decree could be rendered.

The opinion of the court develops the facts sufficiently for an understanding of the points decided. 1. The complainants, as next of kin, cannot maintain this suit, because the legal title is in the representative of the trustee, and the equitable title (if there was any, except a life estate) passed to her administrator, to be administered according to law. 2.

Frangois Circuit Court. The act of 1849 did not deprive Moore of the right to reduce his wife’s interest in the estate of her father into possession, and dispose of the same as he might think best. Session acts of 1849, p. 67. Holmes v. Holmes, 4 Barb. S. C. R. 295.

This was an action instituted by the respondents, on the 80th of December, 1850, against the appellant and Nancy Smith, administrator and administratrix of Jesse Smith, to recover certain slaves, tbe children and grand children of a negress named Charlotte. During the pendency of the suit, Nancy Smith married, and it was continued against the appellant alone.

<p> Appeal from, Stoddard Circuit Court. </p>

The court erred in admitting evidence to show that the bill of sale, absolute on its face, was intended as a mortgage, in the absence of any fraud, surprise or mistake. Revere v. Leonard, 1 Mass. Rep. 91. Paine v. Mclntier, ib. 69. Storer v. Freeman, ib. 435. Richards v. Killam, 10 ib. 244. Stackpole v. Arnold, 11 ib. 27. Dwight v. Pomeroy, 17 ib. 303. Pier-sons v. Hooker, 3 J. R. 68. Howes v. Barker, ib. 506. 7 ib. 341. Thompson v. Ketcham, 8 ib. 189.

Jippeol from, Madison Circuit Court. This was an action of assumpsit on the common counts, begun in 1848. The defendants were owners of the Buckeye Copper Mine, in Madison county, and Ebenezer G. Pomeroy Was their agent to superintend and manage the same. As such agent, he kept a running account with the plaintiff, who was a merchant.

This was an action of ejectment, brought to recover possession of part of a lot in the town of Louisiana. To sustain their action the plaintiffs offered in evidence : 1. A patent for the fractional section on which the town was located, bearing date October 1, 1819, to Samuel K. Caldwell and Joel Shaw, the original proprietors of the town tract. 2.

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

The court erred in refusing the first and second instructions asked by plaintiff. It is insisted that this is the true rule, and that there is nothing in this case to prevent its application to the respondent. It was the duty of the respondent to deliver the property of the deceased to the proper tribunal or officer nearest where it was found in California, to be held and transmitted to the domiciliary representative according to law.

Louis Court of Common Pleas. 1. Mrs. Mackay could not sell the land in controyersy at all, under the will of her husband. The words “ residue and remainder” in the 7th section do not include the reversionary interest in the mansion house and plantation. Those words are to be taken in their ordinary and not technical sense. 2. If the will gave her power to sell, she did not legally exercise that power. The consent of Soulard and Long was necessary.

Louis Court of Common Pleas. The city is not responsible for any injury sustained by the plaintiff through the negligence of the contractor. To make one person liable for an act or omission of another, the latter must be the servant of the party sought to be made liable. Milligan v. Wedge, 12 Ad. & Ell. 787. Quarman v. Burnett, 6 Mees. & Weis. 497. Rapson v. Cubitt, 9 Mees. & Weis. 710. Reedie, also Howitt v. London & JY. W. Railroad Co., 4 Weis. Hurl. & Gord. 248-258.

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

Louis Law Commissioner’s Court. This was an action brought by Schneer against Lemp for the value of services alleged to hav.e been rendered as foreman of the defendant’s brewery. At the trial, 'the plaintiff offered evidence tending to show that he was at work in defendant’s brewery, as foreman, from March 27th, 1850, to August 12th, 1851, audit was admitted that the wages claimed were reasonable.

Louis Law Commissioners Court. This was an action brought by the respondent, for services rendered as agent in collecting rents. The appellant, in his answer, denied the correctness of the account sued upon, and filed an off-set.

Jippeol from St. Louis Court of Common Pleas. relied upon McKee v. Jingel-rodt, 16 Mo. Rep. In this case, the assignment of the lease was absolute, and in that differs from McKee v. Jingelrodt. The following authorities are relied upon. Eaton v. Jaques, 2 Doug. Rep. 453. Walker v. Peeves, ib. 461. Jlstor v. Miller, 2 Paige’s Oh. R. 68. Jlstor v. Hoyt, 5 Wend. 603, 614. Williams v. Bosanquet, 1 Brod. & Bing. 238. Burton v. Barclay, T Bing. T45. Pilking-ton v. Shaller, 2 Vern.

Jippeal from St. Louis Court of Common Pleas.' Lindell, Walker, Robbins and others agreed with Brant, in writing, not under seal, to unite in the defence of suits brought to recover a tract of land known as the Clamorgan arpent, and to contribute towards the defence, in proportion to the value of their several interests in the land. The parties to this agreement appointed a committee to employ counsel and conduct the defence.

Jlppeal from St. Louis Court of Common Pleas. The court below erred in assuming that a stranger, who indemnifies the surety in a bond, cannot, as assignee of the surety, recover against the principal. Payment of the debt by Chouteau did not extinguish the liability of Sweeney on the bond, and Chouteau, by the assignment, succeeded to all the rights of Labeaume against him. 2 Greenl. It. 341. 8 J. R. 249. 1 Wash. 0. C. R. 278. 3 Met. 169. 2 Barr, 273.

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

<p>1. A mandamus is served By delivering the writ to the person to whom it is directed; and he makes his return to it. It is no service of the writ for the officer to offer to read it, and then keep it, and make his return upon it, as he would upon a summons.</p> <p>2. A judgment of the St. Louis law commissioner, refusing to make an order on a justice of the peace, is not such a judgment as an appeal to the Supreme Court can he taken from.</p> <p>3. The superintending control over justices of the peace, given hy the state constitution to the Circuit Court, is not interfered with hy the power conferred on the St. Louis law commissioner.</p>

Louis Circuit Court. 1. Under its charters of 1889 and 1841, the city had power to levy the tax, and to sell for the non-payment of it. 2. All the proceedings were regular, and in substantial conformity with the provisions of the charter and ordinances. It is said that the assessor, in his return, did not mention the streets which bounded the property, nor the name of the owner, as he was required to do by section six of the ordinance, approved March 28, 1835.

Louis Court of Common Pleas. 1. The facts in this ease show that there was a dedication to the public of the land sued for by the plaintiff. To effect a dedication, no particular words or acts are required, no donee or grantee is necessary, and no particular length of time is requisite for evidence of a dedication. City Council of Lafayette v. Holland, 18 La. Rep. Brown y. Manning, 6 Ohio, 303. Brown v. McCandless, 7 Ohio, 2d part, 136. Beatty y. Kurtzj 2 Pet. 566.

Louis Court of Common Pleas. This was an action brought to recover a parcel of land lying on the east side of Main street, in the city of St. Lodi's, fronting on Main street fifteen feet seven inches, being sixteen feet seven inches wide in the rear,'and having the depth of one hundred and fifty feet (French measure) from front to rear.

Jlppeal from St. Louis Court of Common Pleas. 1. The acts of Cutting were not binding on the company after July 15, 1850, he having on that day ceased to be its agent. 2. The custom of the company being only to take charged boats when they were brought along side of the ways by direction of the company in order to be taken on the docks, express authority from the company was necessary, to enable an agent to bind the company by a contract different from such custom.

Louis Court of Common Pleas. There was evidence tending to show fraud on tbe part of Jones which should have gone to tbe jury. There was' no evidence of any fraud or collusion on tbe part of Jones. He had a right to accept a new lease, even though he had notice oí the sub-lease from Morgan and Yan to plaintiff. The forfeiture of the original lease to Morgan and Yan necessarily terminated the sub-lease to plaintiff.

Louis Court of Common Pleas. Childs brought an action under the new code, alleging that the defendant had falsely accused, and caused him to bo accused of embezzlement, and upon this charge had unjustly and maliciously, and without probable cause, caused him to bo arrested and imprisoned ; that under color of a search warrant, the defendant had obtained possession of certain valuable papers and evidences of debt belonging to the plaintiff; that the defendant had caused the…

Louis Court of Common Pleas. . This was a suit by attachment begun October 22, 1851, on an account amounting to $279 41, for ready made clothing, sold by the'plaintiffs, who were wholesale dealers, to the defendant, who was a retail dealer.

Louis Court of Common Pleas. The petition stated that, on the 16th of April, 1850, Thos.

Jlppeal from Si. Louis Circuit Court. 1. Tbe court below dismissed tbe suit because tbe plaintiff sought to eject a party in possession and claiming adversely, and in tbe same petition prayed for partition with other parties. This was^rror. See art. 8, §12 of new code; also art. 3, §6. E-vsiif there was a misjoinder of actions, the suit ought np.Vt'o have been dismissed, but the plaintiff should have beep/permitted to dismiss one branch of it. 2.

<p>1. A landlord is not bound to repair unless he covenants so to do in his lease.</p> <p>3. Nor is he liable to his tenant for damages caused by a nuisance on the leasehold premises^ unless upon some contract; or unless the nuisance arises from some act with which he is connected.</p>

<p> .Appeal from, St. Louis Circuit Court. </p>

Louis Court of Common Pleas. Tbe appellants were entitled to retain so mucb of tbe money collected on tbe collaterals as would pay them tbe amount advanced by them. 4 Watts & Serg. 282. 5 T. R. 214. Held: that the agent is not liable for money advanced under such circumstances-. Story on Ag. §265. 10 Mees. & Weis. 1.

Louis Circuit Court. This was a bill, filed by Harrison, October 3,1846, for the specific performance of the following agreement, dated August 30, 1838,' acknowledged March 22, 1839, and filed for record June 13,1840: “ Agreement between Ephraim Town, of the one part, and John Smith, William Smith, Henry Smith and Dalzell Smith, of the other part.

•Appeal from, St. Louis Law Commissioners Court. relied upon the case of Hunt v. Hernandez, 16 Mo. Rep. The judgment should be affirmed, because no motion to set aside the affirmance or for a new trial was made below, and no exception taken. 18 Mo. Rep. 4. 14 ib. 615. 7 ib. 224, 408.

Louis Court of Common Pleas. 1. The court erred in excluding parol evidence of the disclosure of the incumbrance, at the time of the application, to the agent of the defendant, and of the agent’s reply. 2. The court erred in refusing appellants, 4th, 6th and 8th instructions, and in giving respondent’s first instruction. 8. The description of the building, as contained in the application and policy, and therefore warranted, was fully sustained.

Louis Law Commissioner’s Court. 1. The taking of a note by Hempler from Nauman, after bis return, was a satisfaction of tlie debt for which Schneider was security, and operated to discharge him. 2. The fictitious credits given by Hempler on the instrument sued on, did not give the law commissioner jurisdiction. Ramsay v. Court of Wardens, 2 Bay (S. C.) 180. Sanders v. Stratton, 2 Penn. 528. Coleman v. Purcell, ib. 561. Simpson v. Me Million, 1 Nott & McCord, 192.

Louis Circuit Court. This was an action of replevin, brought in the Circuit Court, by Kingsbury against Lane, in his life time, for two slaves. The only issue to be tried was the traverse of Lane’s plea of property in himself; so that the burden of proof lay on him.

Louis Circuit Court. 1. The petition was sufficient, without amendment, for the actual balance due. In pleading, that is sufficiently certain which, by what is alleged, can be made certain, and this is all the certainty required by the new code. See sec. 1, art. 6. The defendant is not misled, for a copy of the petition is served upon him, and from its data he can compute the just balance.

Louis Circuit Court. The note to Wade & Osborne, accompanied by the writing underneath it, is not an accord and satisfaction of the debt demanded in this suit. 1. Because it is executory. 19 Wend. 408. 4 Denio, 414. 2. Because, to be such, it should be full, perfect and complete. 5 N. H. 136. The note, with its subscribed writing, is not a payment. The note of a debtor, for his debt, is not a payment. 8 Cow. 77.

<p> Appeal from St. Louis Court of Common Pleas. </p>

Louis Circuit Court. The matters mentioned in the account and made a part of the scire facias, were, in every particular, the proper subjects of a lien under our statute concerning mechanics’ liens. R. C. 1845, p. 783. It is not necessary that the work should be done literally on the building.

Louis Court of Common Pleas. It is error to permit a default to be taken after answer allowed to be filed. In sucb a case, there is no failure to answer, within the meaning of the statute. In this case, the answer was filed before default taken.

Jlppectl from St. Louis Court of Common Pleas. The evidence establishes that there was a partnership. If so, one partner cannot sue another at law, situated as these were in reference to their accounts. Ohitty on Con. 286. 5 Mo. Rep. 112. 8 ib. 574. 10 Mo. Rep. 640.

<p>1. The Supreme Court will not notice a bill of exceptions not signed.</p> <p>2. If a judge improperly refuses to sign a bill of exceptions, Ms error cannot be corrected by appeal.</p>

^Appeal from Law Commissioner’s Court. Before plaintiff bad any right to bis money, the $400 note must have been paid. A compromise or amicable adjustment cannot be termed a payment. Bouvier’s Law Diet. tit. “ payment.” The sqle by the trustees and the purchase by defendant of the land was not equivalent to a payment.

•Appeal from St. Louis Circuit Court. This was an action of assumpsit, begun by Garland against Harrison, March 9, 1849. The declaration contained the common counts, and one upon an account stated. The object of the suit was to recover one half of the amount of a judgment rendered in the St. Louis Court of Common Pleas, October 22, 1847, in favor of Isaac S. Clark against Marshall C. Holliday.

Louis Haw Commissioner’s Court. 1. A passenger who has shipped for a certain landing is bound, in stress of weather, the night being dark and stormy, and the landing dangerous, on. such a night, to the safety of the vessel and the lives of the passengers and crew, to land at the landing nearest the one of his destination, upon being notified that it is unsafe and dangerous to land him at the place for which he is bound ; and if such passenger refuses to land at the next…

Louis Court of Common Pleas. The respondents were not entitled to damages under the ‘ ‘ act concerning bills of exchange and negotiable promissory notes.” The fifteenth and sixteenth sections of that act are the only ones applicable to notes, and they do not authorize a recovery of damages. On the contrary, section sixteen limits the recovery to the amount mentioned in the note.

•Appeal from St. Louis Circuit Court. This was an action brought by Menkens, the respondent, against Heringhi, the appellant, before a justice of the peace, on the 20th day of August, 1850, upon two drafts or bills of exchange, written partly in the Italian language, partly in the German language, and partly in the English language, of which the following are correct translations : No. 1. ' The 15th of March, 1850, for $62.

«Appeal from St. Louis Circuit Court. This was an action upon a policy of insurance, upon an agreed statement of facts.

Louis Court of Common Pleas. This was an action upon a policy of insurance on the steamboat St. Joseph.

Louis Circuit Court. 1. The certificate of confirmation of the recorder of land titles, dated January 22, 1839, was erroneously excluded from tbe jury. It was prima facie evidence of title, and ought to have prevailed, until the defendants had shown a prior or a superior title, or at least, until they had disproved the facts necessary to bring this claim within the operation of the act of June 13, 1812.

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

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

Louis Law Commissioner’s Court. This was an action brought by the respondent to recover the value of services alleged to have been rendered appellant as engineer and master of the Carondelet steam ferry boat, and in taking care of ferry flats from June 1, 1851, to July 15.

<p> Appeal from, Lvw Commissioners Court. </p>

<p>Error to St. Louis Circuit Court.</p>

Louis Circuit Court. It was obviously the policy and object of the legislature, in enacting the clause of the statute, by virtue of which exemption is claimed, to encourage education ; but it is well settled that, whenever a special exemption from certain general duties is contained in a statute, it is not expounded according to the rule of liberal construction. 19 Ohio, 115.

I. There was error in giving defendant’s fourth instruction to the jury. 1. By that instruction, the jury were told that a simple delivery to Greene would take away from the company and its agents all authority over the lumber. This proposition, manifestly, cannot be maintained. 2.

Cannon brought .a suit by attachment against McManus. McManus filed an answer, denying the truth of the affidavit on which the attachment issued, and also the indebtedness charged in the petition. At the trial, the court refused to try. any issue but that made on the indebtedness, and excluded.all evidence offered to disprove the affidavit, holding that the plea, in abatement was waived by the plea in bar ; to which, the defendant excepted..

Jlppeal from St. Louis Circuit Court. The reason assigned by the Probate Court for refusing to make the order, is not a valid one. When any court is vested with power to do a particular thing, it has power to do all things necessary to carry out that jurisdiction. That the contract was not affirmed in writing, is the very reason why the jurisdiction of the court is invoked. It is well settled that the deed of an infant is not void, but only voidable.

Louis Circuit Court. There was no allegation of a special contract in the plaintiff’s petition. He proceeded upon an implied contract to pay him what his work was reasonably worth. The instruction given was, therefore, erroneous. The new code does not dispense with the rule that the proof must correspond with the pleadings. The petition stated that the plaintiff rendered his services at the stipulated price of twelve dollars per week, but there was no such proof.

<p> Error to St. Louis Court of Common Fleas. </p>

•Appeal from St. Louis Court of Common Pleas. Tbe demurrer should have been sustained for two reasons : 1. Tbe complaint does not show that tbe whisky was furnished at any place within the state of Missouri. 2. The demand was not a lien. 6 Mo. Rep. 874. 12 ib. 261, 371, 412. 10 ib. 583. The whisky was furnished to enable the boat to discharge a lien'claim.

<p> Appeal from, St. Louis Court of Common Pleas. </p>

Louis Circuit Court. This was a suit against the security in a detinue bond-. The declaration stated the following cause of action : In 1844, the plaintiff, McDermott, filed in the St. Louis Circuit Court a declaration in detinue against Samuel A. Childs, for the recovery of a slave, upon which a writ of capias in detinue issued, according to the provisions of the act of 1835, concerning de-tinue.

Loúis Circuit Court. This was an action to recover possession of twenty feet of ground in the town of Lagrange, begun against Robt. Crough-ton, April 25, 1851. The plaintiffs claimed title under a deed of trust executed by said Croughton to Charles Gregory, as trustee, dated July 19, 1849, and recorded September 24, 1849. They became the purchasers at the sale under the deed of trust, and received a conveyance' from the trustee, which was duly acknowledged and recorded.

<p>1. In an action by A. against B. for money advanced at the instance of G. on a contract made hy C., in his own name, on behalf of B., with D., for the purchase of a boat, It was held that, under the system of practice which prevailed prior to the adoption of the new code, 0. was not a competent witness for A.</p>

Louis Court of Common Pleas. This was a suit instituted to enforce a lien against the steamboat Missouri for work and labor done, and materials furnished in the repair of said boat at St. Louis. The cause of action accrued in May, 1850, soon'' after which, the boat left St. Louis for New Orleans.

<p> Error to St. Louis Court of Common Pleas. </p>

Louis Criminal Court. Tbe defendant was indicted for stealing bogs. Tbe evidence for tbe state was, that defendant and another man (who was impleaded with him, but against whom a nol pros, was entered) were found hauling five bogs away on a wagon, two of which were cl aimed by one Frederick Price; tbe others were supposed to belong to the defendant. Price’s bogs were marked, and bad been running at large where defendant killed them.

1. The declarations of James Carter were clearly inadmissible. There was no such privity between him and the plaintiff in error, as to render his declarations admissible. The plaintiff in error did not claim under James Carter, but James claimed under him. Before the declarations of a privy or agent are admissible, the privity or agency must be established by independent testimony. 2 Stark. 59. 5 Watts, 392. 2.

•Appeal from, Buchanan Circuit Court. So far as the rights of the appellant are concerned, it is immaterial whether the absolute deed and bond constitute a conditional sale or a mortgage. In either case, Kennedy had such an interest as could be sold under execution. If it be a conditional sale, a tender, at the time specified in the bond, was substantially admitted in the answer, and was proved by two witnesses.

In April, 1843, T. A. Todd, as principal, and Wm. Hall and W. A. Lacy, as sureties, executed a note to John Routon for one hundred dollars, payable two days after date. Wm. Hall died in the year 1845, and his administrators, on the 21st November, 1845, served on John Routon, the creditor, a notice, of which the following is a copy : “ Nov. 21st, 1845.

By the common law, ancestral beirs on the paternal side only could inherit. Our statute only abolishes primogeniture,' and establishes an equality of distribution without regard to sexes ; but it does not change the common law rule as to inheritable blood. Sevan v. Taylor, 7 Serg. & R. 898. Jackson v. Haines, 4 Dallas, 64, 66. 2 Binney, 285. 7 Cranch, 456, 470. 3 Halstead, 345.

<p>1. Where a writ was directed to the coroner, instead of the sheriff, it was held that, after a motion to quash filed, the plaintiff was properly allowed to amend the writ, by stating, as a reason why it was so directed, that the sheriff was one of the defendants.</p>

contended that the note was void for uncertainty, and could not be explained by parol evidence. Davis v. Davis, 8 Mo. Rep. 58. 1 Phill. Ev. 538. 1 Chit-an PL 73, 80. 2 N. H. Rep. 160. 4 ib. 21. 5 Mo. 102, contended that parol evidence was admissible to explain tbe note. Mien v. Lyons, 2 Wash. C. C. R. 475. Brown v. Gilman, 18 Mass. Rep. 161. Boyd v. Brotherton, 10 Cowen, 98. 11 Mo. Rep. 142.

This was a proceeding by petition, founded on the eleventh section of the. act concerning wills. The plaintiffs were the children of Emily Guitar, who was a daughter of David Gordon, the testator, who'made his will in April, 1848, and died in the month of January, 1849. Emily Guitar, the mother of the plaintiffs, died during the year 1847, prior to the making of tbe will.

•Appeal from, Buchanan Circuit Court. relied upon .Oyster v. Shumate, 12 Mo. Rep. 580, and Hunter v. Reinhard, 18 Mo. Rep. 28. 1. A judgment on confession rendered by a justice of the peace on a day other than a regular law day, is not erroneous, and cannot be impeached eren in a direct proceeding.

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

1. A mere temporary absence from the usual place of abode, although during such absence, no white member of the family be present, does not authorize an attachment. 2. It is not necessary that a person should be in the employ or under the control of another, to constitute such person a member of the family of such other.

urged the court to review the decision in the case of Wilson v. Cockrill, 8 Mo. Rep. 1. 1. The limitation to the plaintiff, on the death of the first taker, is too remote and therefore void. Fearne on Remainders, 445. 2.

<p>1. In an action on an administrator’s 'bond, where the breach assigned was, that the administrator had failed to account for assets of the estate, and had converted the same to his own use, and the plea was the statutory plea of the general issue, it mat keld, that proof that assets had come to the hands of the administrator did not make out a prima facie case for the plaintiff.</p>

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

This was an action of ejectment begun in 1848, by Flournoy against Warden, for the south-east quarter of section 7, township 53, range 19, granted to John Smith, as bounty land for his services in the war of 1812 with Great Britain; and the question was, as to the identity of Smith, the plaintiff’s grantor, with Smith, the patentee. . On the trial before the court, without a jury, on the general issue, the plaintiff gave the following evidence of title: 1.

It is well settled that a sale under a judgment of a court having jurisdiction of the person, and of the subject matter in controversy, carries the title, however erroneous and irregular its proceedings may be. McNair v. Biddle, 8 Mo. Rep. 264. 9 ib. 124.

The bond being a joint one, each executor is bound for all the acts of his co-executor in relation to tbe estate. 9 Yt. Rep. 80. 5 Pick. 96. 1 Swift’s Dig. 449. Tbe plaintiff in error was not relieved from responsibility by turning tbe assets over to bis co-executor. 7 East, 246. 11 Yesey, 252, 338. 7 Yesey, 194. 1 P. Williams, 241, and note. 3 Bacon’s Abridg. 32.

<p>1. Boundaries may be proved by a witness who is acquainted with the lines and corners run and established by the surveyor, though he never saw the land surveyed. It is not necessary to produce any plat of survey or field notes.</p>

relied upon Collier v. Valentine, 11 Mo. Rep. 310. The fact of “negligence” is-found by the court. This is,not’to be understood as a declaration of the legal proposition that, under all circumstances, it would be negligence in a boat to pass a difficult and dangerous channel after daylight.

<p>1. Under the .first section of the act concerning “trespass,” (E. C. 1845,) where a plaintiff, in his petition, claimed damages for a wrongful entry upon his land and for timber cut and carried away, and there was a general verdict in his favor, and an entire assessment of damages, with no finding of the value of the timber, it was held, that the damages could not be trebled.</p>

There was a variance between the note sued on and the petition. The court erred in permitting the note to be read 'in evidence, and in refusing de-? fendant’s first and second instructions. The defendant, in his answer, admitted, by not denying the allegation, of' the petition, that, by the note thereto annexed, he “promised to pay plaintiff,” &c. This being so, the objection of variance was untenable. For the same reason, the defendant’s instructions were properly refused.

1. No execution can issue upon an affirméd judgment until an order of the Circuit Court is first obtained. The damages awarded by the Supreme Court do not become incorporated with and make a part of the original judgment. 2. The judgment in this case was special, for the foreclosure of a mortgage.

This was an action begun before a justice of the peace and appealed to the Circuit Court, on a note made by James Williams, as principal, and James W.' Williams, George Williams, Samuel Murphy, James Smallwood, and the defendant, Hol-lingsworth, as his securities.

The county court of Pettis county, at its August term, 1845, made the following order : “ Ordered, that Henry S. Greer be appointed commissioner to let the building of a bridge at or-near Wasson’s mill; the site of said bridge to be selected by himself, to be built after the same plan of the bridge near Thomson’s mill.

1. The appellant and Elkins made the agreement with respondent, aS' trustees of the school district, and this was known to the respondent; they were authorized by law and by the district to employ a teacher; they are, therefore, not liable in their individual capacity. Ratlibun v. Budlong, 15 J. R. 1. Cairns & Lord v. Bleeker, 12 J. R. 300. 1 Tenn. R. top paging, 103, 386. Swift v. Hopkins, 13 J. R. 312. 2.

<p>1. By the contract sued upon, the plaintiff hound himself to winter a certain number of cattle for the defendant, and the defendant obligated himself to pay a stipulated sum for every head delivered in the spring “in good, thrifty order and condition.” Held, the plaintiff could not recover for the keeping of any cattle that died, or were'not delivered in good, thrifty order and condition, although their death or ill-condition might not have been caused by any want of care on his part.</p> <p>2. Where the question was, whether cattle had died from disease or from plaintiff’s want of care, it was held, that a witness, who had taken cattle to winter from the same drove, might be permitted to state the condition through the winter of the cattle kept by him, what number of them died, in what manner he fed and took care of them, and how many had been affected with disease.</p> <p>3. A witness will not be permitted to state the symptoms and appearance of cattle that die from want of feed, unless he is an expert in such matters.</p>

This was a proceeding in tbe nature of a bill of interpleader, commenced by Carrico against James M. Ross, Jeremiab Tom-linson, Frances Tomlinson, his wife, and others, tbe object of which was to obtain a title to certain real estate upon paying the purchase money, to which estate'it was alleged the parties, or some of them, claimed title. It appears that James M. Ross, being the owner of certain, real estate, conveyed the same to John Ross, who afterwards died.

<p>1. A bond of a county treasurer executed to the State, instead of the county, as required by statute, is good as a common law bond.</p> <p>2. A petition which charges that the treasurer has received money “which he neglects and refuses to pay to the county,” does not sufficiently assign a breach of the bond. There must be an averment that warrants have been drawn upon him by order of the county court.</p>

This was a proceeding on mandamus by Conner against the county court of Cooper county, in order to compel that body to issue to him a warrant on the county treasury, to which, as he alleged, he was entitled.

<p> •Appeal from McDonald Circuit Court. </p>

The first section of the amendments passed in 1851, abolishes the twenty-first section of the fourth article of the original constitution. The second section of the same amendments creates the office of secretary of state, fixes its tenure and prescribes its duties ; and provides that it shall be filled by the people, at such time, and in such manner as shall be provided by law. The act of March 28, 1851, was passed to carry these amendments into effect.

Tbe sixth section of the act in question providing for its submission to a vote of the people, is not unconstitutional. Commonwealth v. Judges, 8 Barr, 391. Commonwealth v. Painter, 10 Barr, 214. Even if that section is void, the whole act is not thereby rendered void. That section may be considered as stricken out, and the balance of the act may stand. Clark v. Ellis, 2 Blackf. 8.

The legislature organizes corporations and authorizes them to make by-laws for their government. So courts are organized and authorized to make rules for their government. What is the difference between these by-laws and rules of court, and the order of the Saline county court ? Corporations make the law of streets and alleys ; and why may not county courts make the law of roads ?

1. The facts received in evidence in mitigation of the offence were an aggravation instead of a mitigation of it. What is done in the heat of blood, the law attributes to the infirmity of human nature, and extenuates. What is done after time for reflection, proceeds from the wickedness of the heart — is revenge, and aggravates the damages. Lee v. Woolsey, 19 J. R. 319. Avery v. Ray, 1 Mass. Rep. 12. Matthews v. Terry, 10 Conn. Rep. 459. Rochester v. Anderson, 1 Bibb, 428.

This was an application for a habeas corpus, the grounds of which are fully set forth in the opinion of the court. The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence.

<p>1. Whether a prosecutor shall be compelled to elect on which count of an indictment he will proceed, is a matter of discretion with the comí; where the same offence is charged in different forms, the court may very properly refuse to compel an election.</p> <p>2. On a charge against A., of an assault with intent to kill B., no remarks or threats affecting A., made by B. to a third party previously to the assault, are admissible in evidence in A.’s behalf; certainly not, when it does not appear at what time they were communicated to him.</p> <p>3. Declarations of B. some months after the assault, in palliation of A.’3 guilt, are not admissible.</p> <p>4. Nor is evidence of B.’s general had and dangerous character admissible, he being unoffending when assaulted.</p> <p>5. Evidence of threats made by B. is not admissible, if sufficient time had elapsed for the blood to cool.</p>

This was a petition filed by Bates to foreclose a mortgage executed by Ann Lowes, November. 1, 1845, on real estate described as follows : “ Thirty feet off of the north side of lot number three, in block number ten, on second street, and running back to the alley in said block, one hundred and forty-two feet; also five and a half feet off from the south side of lot number four, in said block ; being the same ground on which is now erected the brick building known as the…

This was a motion for judgment on a bond given by Robert Hance, as principal, and R. P. Samuel, as security, for the delivery of a horse which was levied upon under an execution against Hance.

This was a demand founded upon a judgment, exhibited in the county court for allowance against the estate of Felix Mundy, at the December term, 1851. Letters of administration on said estate, were granted to Patrick Mundy, on the 28th of October, 1844, more than seven years before the exhibition of this demand. The administrator did not publish notice o'f his letters until December 6, 1844, more than thirty days after they were granted.

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

The court erroneously took jurisdiction of tbe cause. Tire only relief the plaintiff could obtain was under the act concerning the perpetuation of testimony. Admitting that the decree was for the right party, the costs should have been adjudged against the plaintiff, for the reason that the proceedings were not instituted on account of any default of the defendant. 1 Madd. Ch. Pr. 185, 6, 7, 8, 9.

•fippeal from Hannibal Court of Common Pleas. 1. The interplea of Kunkle was properly stricken out. He had no right to intrude himself into this litigation. If he claimed the debt sued for, his remedy was to have instituted his suit with proper parties, in the nature of an injunction, and thus made a direct issue with the plaintiff. Third parties are allowed to interplead only in attachment suits. 2. The aitswerwas properly stricken out.

This was an action brought bj John H. Morse against Thomas H. Maddox, for an alleged violation of the following agreement: “Article of agreement made and entered into between Thomas H. Maddox and John H. Morse, both of the county of Jefferson and state of Missouri, as follows : said Maddox grants, leases, and rents to said Morse, for and during the full term of five years from the tenth day of March, 1849, to the tenth day of March, 1854, the following described premises and…

The contract-of hiring being entire and indivisible, the performance of the entire term of service is a condition precedent to the recovery of the consideration or any part of.it. 7 Mo. Rep. 96. 2 Mass. Rep. 147. 13 J. Li. 390. -19 ib. 337. 3 J. J. Marsh. 689. Cutter v. Powell, 6 T. R.

This was an action commenced before a justice of the peace by Charles Jones against R. R. Jones and C. S. Jeffries, as joint makers with one Kanada, of a negotiable promissory note. The note was dated December 29, 1842, and was, by its terms, payable absolutely to the order .of Charles Jones.

<p>1. E. executed a bond to convey to S. a tract of land, upon payment of the purchase money in four instalments, and S. entered into possession. After two of the instalments were paid, E. recovered judgment for the third, and caused the execution to be levied on the land, which was sold and P. became the purchaser. E. was present at the sale and bid for the land. Held, P. only acquired the interest of S. whch was the. right to a deed upon payment of the balance of the purchase money.</p>

He cited 1 J. R. 480. Wilkinson v. King, 2 Camp. Rep. 835. Long on Sales, 167-8. It is a general rule of law that where one of two innocent persons must suffer by the fraudulent act of another,> the loss must fall upon the one whose act gave the defrauding party power to impose on the other. The plaintiff, by marrying Dunn, and living with him as wife, held him out to the world as the owner of'the property, and placed him in a position to impose on the defendant.

This was an action in the nature of ejectment, begun by the Bank of Missouri against Bates and Wise. There was a judgment for the defendants and the plaintiff appealed. The case is sufficiently stated in the opinion of the court.

The proof established a different cause of action from that alleged in the petition, and therefore the plaintiff could not recover. Butcher v. Death & Teasdale, 15 Mo. Rep. 271.

The plaintiff, Francis L. Jones, filed his petition in the Circuit Court of Perry county, praying partition of several valuable tracts of land in Perry county, formerly the property of Joab Waters, which were by the will of Joab Waters, “ devised to his beloved companion, Polly Ann Elizabeth Caldwell, then called Polly Ann Elizabeth Waters, for and during her natural life, and after her death to descend to her children by him, equally, share and share alike.” The testator…

Pike. Circuit Court. urged the court to review the decision in the cases of State v. Fry, 4 Mo. Rep. 120, and Bryson v. Campbell, 12 Mo. Rep. relied upon State v. Fry, and Bryson v. Campbell, and cited the following additional cases : Holmes v. Holmes, 4 Barb. Rep. 29. People v. Westchester, 4 ib. 75. 8 B. Monroe, 91. Maguire v, Ma-guire , 7 Dana.

Possession of personal property is prima facie evidence of title. An officer is not only justified in levying upon goads and chattels which are in the possession of tbe defendant in the execution as apparent owner, but it is Ms duty to do so. An omission to levy would render Mm liable for the amount of the judgment. R. 0. 1845, p. 486, §58. , The defendant, then, did no wrong.

Jlppeal from Washington Circuit Court. After the date of his deed, Israel McGready, sr., could not, by any act of his, increase the charge upon the land. He had parted with all his title, and became a stranger to it. The appellant was entitled to redeem, upon payment of the amount of tbe note with simple-interest, without regard to the judgments. 1. The appellant was only entitled to redeem upon paying the amount of the allowance in the county court.

It is the province of superior courts to compel inferior tribunals, by mandamus, to perform ministerial acts. 10 Pick. 246. 3 Dallas, 42. 18 Pick. 446. By our constitution, circuit courts have a superintending control over justices of the peace. The petitioner does not ask that the justice'be compelled to do a judicial act, but simply that he shall be made to enter on his docket a true statement of the judgment rendered by him as a justice.

Tiemann filed a motion in the Circuit Court of Franklin county, at the April term, 1852, to quash ‘an execution issued to the sheriff of that county, in favor of Susannah McDonald, on a judgment rendered in the Circuit Court of Gasconade county. On the hearing, it was proved that Susannah McDonald died before the execution issued.