Volume 18 — Missouri Reports

This was an action commenced by Bryson and Hardin against Penix and the administrator o£ James M. Parks, to recover the amount of four notes executed by Parks, in his life-time, and secured by a mortgage on certain beef cattle. The administrators of Henry Early were subsequently made parties defendants.

This was a bill in chancery filed by Horace Y. White on the 5th of April, 1849, against Leo Bullock, for an account of a partnership business and for an injunction of a judgment at law. The bill stated that on a settlement of partnership accounts, Bullock would be found indebted to the complainant irt an amount exceeding the judgment.

At the September term, 1849, of the Madison Circuit Court, a judgment was rendered in, favor of Robert J. Hill and others against Thomas Haile, in an action of detinue, for certain slaves or their value, together with damages for the detention. The case was appealed to the Supreme Court, where a remit-titur having been entered for the value of one of the slaves, the judgment of the Circuit Court was affirmed.

Jlppeal from Perry Circuit Court. This was a suit brought by Rosannah W. Logan, to recover dower in certain lands and slaves of which her husband, John-Logan, died seized and possessed.

1. A court bas no power to set aside a sale and quash an execution after the term is passed to which it is returnable. 2. The sale was valid. 3. If it was voidable, it cannot be attacked by motion. insisted that the sale was absolutely void, and relied upon McDonald v. Sxoeringen, 7 Mo. Rep. 421.

1. The court could take no .‘jurisdiction to the prejudice of the infant defendants, until they ■.had been served with process. A guardian ad litem can only be appointed for a party’in court. 2. No decree could be rendered upon the confession of the guardian ad litem without .proof of the allegations of the bill. 3. The infant is entitled to a day to be heard in court.

Louis Court of Common Pleas. There was error in denying the plaintiffs the right to interplead in the case. 1. The statute gives the right without any limitation as to the time, and no other limitation can justly be imposed by construction than such as arises from an actual judgment against the garnishee. R. C. 1845, title “Attachment,” sec. 39. 2.

Louis Court of Common Pleas. It is not denied that a contract in restraint of trade generally was void at common law. This doctrine, however, is not regarded so important as formerly. 21 Wend. 158. But the contract sued on in this case is not in restraint of trade at all. There are two conditions in the bond : 1. That Eisher & Bennett should not publish. 2. That Clark should not publish. The latter is the one sued upon. This is certainly not a restraint upon trade.

Louis Circuit Court. 1. The judgment in the former suit is only prima facie evidence that the cause of action sued upon in this suit was passed upon in that; and this presumption may be rebutted by parol evidence, even if the breaches in the two suits were identical, and though the declaration in the former suit is broad enough to cover the subject matter sued for in this. Phillips’ Ev. Cowen & Hill’s notes, 838. Jackson v. Wood, 8 Wend. Rep. 24, 25. 2 Johns.

•Appeal from St. Louis Court of Common Pleas. Tnis was a civil action brought by William E. Corwin against Charles D. Walton, to recover damages for an assault and battery. At tbe trial, tbe plaintiff gave evidence tending to show an aggravated assault upon him by tbe defendant, from which be suffered serious injury.

Louis Court of Common Fitas. This was an action brought by Benjamin W. Lewis and others, composing the firm of Lewis & Brothers, against Harvey & Stewart, upon two promissory notes made by John Wilkerson, and described in the petition as payable to the plaintiffs, “ for value received, without defalcation.’5 The petition stated that the defendants wrote their names on the back of the notes before they were delivered to the plaintiffs, thereby rendering themselves liable as…

Jippeal from, St. Louis Court of Common Pleas. John J. Anderson was summoned as garnishee, to answer touching his indebtedness to Bloomer and Holmes, defendants in an execution, in which Stewart and others were plaintiffs. At the return term of the writ, he appeared and filed his answer to the allegations and interrogatories exhibited by the plaintiffs.

Jlppeal from St. Louis Court of Common Pleas. The deed calls for no monuments, and the north and south boundaries are indefinite, leaving it doubtful whether the grantor intended to bound the land on the north and south by public, or by vacant or uninhabited land. This being the case, the quantity becomes descriptive 'and must govern. 2 Greenl. Ev. §301, note and cases there cited. The deed calls for ten arpens in front by twenty arpens in depth.

•Appeal from Si. Louis Court of Common Pleas. This was an action brought by Eli Foster, in 1851, against the appellants, $o recover damages.

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

Jlppeal from St. Louis Court of Common Pleas. This was an action commenced against the steamboat Madison, under the act concerning boats and vessels.

<p>1. Where a plaintiff, who was suing for damages to a boat, proved damage but not the amount of it, a judgment was erroneously given for the defendant, instead of a judgment for the plaintiff for nominal damages.</p>

Jippeal from St. Louis Law Commissioner’s Court. Board and lodging are necessaries, for which the assent of the defendant may be presumed. Chitty on Contracts, 165. Reeve’s Domestic Relations, pp. T9, 80. The agreement between the defendant and Sage constituted no defence, because tbe plaintiff bad no notice of it. Rawly ns v. Vandyke, 8 Esp. 250. 12 J. R. 248. 11 Wend. 33. 4 Harr. 885.

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

Louis Court of Common Pleas. The burden of proof was on the defendant to show that Harper died in the known violation of a law of this state. The question is not, whether Coryell was justifiable or excusable in killing Harper, under the circumstances given in evidence. A man may be killed when he is doing nothing wrong and is not intending to do any thing wrong, but when an apprehension that he is, is falsely made upon the mind of his assailant.

Error ¿o St. Louis Court of Common Pleas. This was an action to recover the sum of one hundred and thirty dollars, which had been paid by the plaintiff, to take up a bill of exchange, alleged to have been accepted by him for the accommodation of the defendant.

<p>1. A suit by attachment was commenced before a justice against Benjamin F. Otis and-Otis, as non-residents, upon a note signed by B. F. Otis & Co., and judgment by default was rendered against the defendants upon publication. On appeal to the circuit court, it was held erroneous to refuse permission to the plaintiff to dismiss as to-Otis, it appearing that no such person was ever a member of the firm.</p>

<p>1. The supreme court will not reverse a case for the refusal to grant a new trial on the ground that the verdict was against the weight of evidence and contrary to the instructions.</p>

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

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

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

Louis Court of Common Pleas. The court erred in refus - ing to declare that, if the plaintiffs had separated their goods before the fire, and had dissolved partnership, they could not recover. Murdoch & Garrett v. The Chenango County Mutual Ins. Co., 2 Comstock’s Rep. 210. Howard & Apie-rnan v. Albany Ins. Co., 8 Denio, 808. The instructions of the court do not cover the case under the condition.

'Appeal from St. Louis Court of Common Pleas. 1. The giving, of the notes by Foley & Papin was not a satisfaction of the notes mentioned in the deed of trust. 8 Mass. Rep. 465. The transaction amounted to a purchase of the notes by Foley & Papin, and an assignment to them. The delivery of the notes to Shepard to be delivered to the appellants, amounted to an assignment of them. 13 Mass. Rep. 304. The assignment of the deed of trust was an assignment of the debt. 3 Met.

LLppeal from St. Louis Court of Common Pleas. This was an action commenced in August, 1851, by Charles A. Perry against Richard P. Barret. The petition charged the defendant as guarantor of a note executed by William J. Bar-ret, payable to Ross and Harper, and by them indorsed to the plaintiff, upon the back of which the defendant and Hiram Rich wrote their names in blank, before its delivery to Ross and Harper.

Jlppeal from St. Louis Court of Common Pleas. 1. Rhodes was at least entitled to the benefit of what the plaintiffs owed Love & Osborne for advances and commissions. A factor has a right to appropriate the property of his principal to the extent of his lien, and this demand was a lien. 15 Mo. Rep. 184. 2.

Louis Court of Common Pleas. This was an action brought by John E. Smith against Luther M. & Mortimer Kennett, to recover damages for the alleged conversion of the wreck of the steamboat Jewess, which was sunk at the St. Louis levee, on the first day of January, 1852.

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

Louis Court of Common Pleas. The new practice act provides that tbe defendant may unite in bis answer as many grounds of defence, including off-sets, as be may have, although tbe same may heretofore have required different actions at law, or an action or actions at law, and a suit or suits in equity. 1. Tbe answer showed no actual damage or injury sustained by tbe appellants from the alleged frauds of tbe respondents.

•Appeal from St. Louis Court of Common Pleas. 1. An action for the causes set forth in the plaintiff’s petition can be maintained. 20 Wend. 210. 3 Comstock, 489. 2. If the action, as stated in the plaintiff’s petition, can be maintained, then it survives to the administrator. The personal representative of the plaintiff can maintain an action for the loss of the services or the plaintiff’s son, caused by the gross carelessness and fault of defendants.

Louis Law Commissioner’s Court, The maxim caveat emptor is applicable, no fraud being charged against the defendant, nor any knowledge of the invalidity of the warrant. 2. There is no evidence whatever of the sale of the warrant by the defendant to the plaintiff. 1. There was an implied warranty that the warrant was valid, as a full price was paid. It turned out to be no warrant in fact, and'entirely worthless. Jones v. Shaver, 6 Mo. Rep. 642. Ferguson v. Huston, 6 Mo.

Louis Court of Common Pleas. 1. Forcible entry and de-tainer being, in its nature, a mixed action, and one which, under the common law, would have admitted of summons and severance, it would not have abated by the death of one of the plaintiffs, if the common law still prevailed, for it would have been saved to the surviving plaintiff by the operation of the jus accrescendi of the eommon law. 1 Comyn’s Digest, 126. Bacon’s Ab. tit.

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

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

Louis Circuit Court. This was an action of trespass commenced by Richard E. Knox, in October, 1848, against Hunt & Labeaume, to recover the value of certain property which had been seized and sold by Labeaume, as sheriff, under an execution in favor of Hunt against E. K. Dodge, together with damages for the taking of same. The plaintiff claimed the property by purchase from ■ James T. Key.

<p>p Case affirmed, because there was no bill of exceptions to the action of the court upon motions.</p>

Jlypeal from St. Louis Court of Common Pleas. The court erred in relation to the measure of damages. The actual loss or injury arising from non-performance, and not the price agreed to be paid upon performance, is the correct measure. Pond v. Wyman, 15 Mo. Rep. 175. Abbott on Shipping, 411. Sedgwick, 861. Shannon v. Comstock, 21 Wend. 457. 24 Wend. 304. 2 Grallis. 61, 74, 75.

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

Louis Court of Common Pleas. The discharge in question being a valid discharge, by the law of Maryland, is a bar to this action. A defence or discharge, good by the law of the place where the contract is made, is of equal validity in every other place. Story’s Conflict of Laws, §330 to 336, 340. Blanchard v. Russell, 13 Mass. Rep. 1. Hicks v. Brown, 12 Johnson’s Rep. 142. Shevill v. Hopkins, 1 Cowen’s N. Y. Rep. 103, 105, 108.

Louis Circuit Court. This was a proceeding begun by the Respondent to enforce a mechanic’s lien against real estate ownhd by C. W. Schaum-burg. Pending the suit, Schaumburg died, and the suit was revived against his administratrix, who was brought in by scire facias.

Louis Court of Common Pleas. This was an action to recover a quantity of glass, wbicb bad been consigned by the plaintiffs, wEo were merchants in Pittsburgh, to Love & Osborne, commission merchants in St.. Louis, to be sold on account of the plaintiffs. The glass was* by Love & Osborne, delivered to the defendants in satisfaction of their own debt. The defendants were informed by Love & Osborne that the glass did not belong to them.

Louis Court of Common Pleas. This was an action on an open policy, brought by Fletcher to recover the value of one hundred and forty-seven bales of hemp, indorsed upon the policy, and destroyed at the St. Louis levee by the great fire on the 17th of May, 1849. The plaintiff shipped the hemp from different points on the Missouri river, on board the steamboat Amelia, consigned to Yeatman, Pittman & Co., of St. Louis.

Louis Court of Common Pleas. This was a suit on an attachment bond, executed by Stein-mann, as principal, and Lauman, as security, to enable the former to sue out a writ of attachment against Eli Sly. The plaintiff claimed damages to the amount of $1,200. The defendants filed a motion to strike out a part of the plaintiff’s petition, which was sustained. This motion is set out in the opinion below.

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

<p>1. Where a note given for a quit claim deed was payable unless the grantees should within twelve months establish that the grantors had no title, it was held, that if the grantees failed to establish the want of title within twelve months, they could not afterwards set the same up as a defence to the note by way of failure of consideration.</p>

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

Louis Court of Common Pleas. This was an action brought by the Pacific railroad, a corporation, to recover palls upon stock subscribed by Renshaw, and which he refused to pay. There was a judgment for the defendant, and the plaintiff appealed. The defence relied upon appears in the opinion of the court.

Jlppeal from Si. Louis Circuit Court. 1. Tbe alleged inadequacy of price is no reason for refusing tbe decree. Harrison v. Town, 17 Mo. Rep. 2. Tbe fact that Kuntz paid tbe amount of tbe incumbrance after tbe sale, is immaterial, for as soon as tbe property was struck down by tbe auctioneer, the rights of tbe purchaser attached. Stine v. Wilkins, 10 Mo. Rep. 94. 8. There was a sufficient memorandum of tbe sale to take it out of tbe statute of frauds.

Louis Court of Common Pleas. This was an action to recover possession of the south-west fractional quarter of block 87, within Eiler’s survey of the town of Carondelet. Both parties claimed title under the town.

Louis Circuit Court. This was an action brought by the Columbus Insurance Company against Edward Walsh, to recover back money paid upon a policy, after a loss, in. ignorance of a subsequent insurance upon tbe same property, wbicb avoided the policy. The company, by its policy dated February 22, 1849, insured the firm of J. & E. Walsh, of which the defendant is surviving partner, in the sum of six thousand dollars, upon one fourth of the steamboat Marshal Ney.

Louis Criminal Court. McCoy was taken before the recorder of the city of St. Louis and fined five hundred dollars, for a violation of a city ordinance establishing quarantine regulations. He appealed to the Criminal Court, where the action of the recorder was affirmed, and he appealed to this court.

Louis Circuit Court. Hunt was entitled to a lien on the crop for the rent accruing • for the year, or at least for so much thereof as properly represented the farming lands, and the court ought not to have excluded the evidence that would have established the amount thereof. The letter of the law is not inconsistent with this view, and there is no difficulty in practice under it.

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

Louis Circuit Court. This was an action commenced by Margaret Davis, under the article of tbe code of 1849, entitled “ Claim and delivery of personal property,” to recover possession of her daughter, a negro girl, named Patsey, who, she alleged, was her slave, and wrongfully .de.tained byplakey ,& McAfee, the defendants. The defendants answered, that Patsey was placed in their possession for safe keeping, by A. H. Evans, and denied that she was the property of the plaintiff.

Louis Circuit Court. On tbe trial o£ tbis cause, tbe defendant offered to read in evidence tbe deposition of McEaddin. It was admitted that McEaddin was absent from tbe state, and that tbe notice bad been served on the clerk of tbe plaintiff’s attorney, at bis office, and that plaintiff at tbe time resided in St. Louis. Tbe court excluded tbis deposition. There was a verdict and judgment for tbe plaintiff, from which tbe defendant appealed.

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

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

Louis Court of Common Pleas. 1. There was evidence tending to show that Barret acted as counsel for plaintiff, which should have gone to the jury. 2. If he did thus act, the plaintiff was entitled to the relief prayed for. Galbraith v. Elder, 8 Watts, 81. Horfcenbury v. Carlisle, 5 Watts & Serg. 848. 3. The fact that Cowan did not receive the deeds under which he claimed the land, until after Brotherton’s purchase, is immaterial.

Louis Court of Common Pleas. 1. Tlie sale by Morrison passed away Ms interest in tbe premises insured, and therefore discharged the underwriter. 2. If Morrison’s conveyance and the deed of trust for the security of the notes to him be considered as one transaction and merely a change of his interest in the premises insured, yet it is such a change of interest as releases the underwriter.

Louis Circuit Court. This was a petition filed by Thomas Leitensdorfer, for partition of two tracts of land formerly owned by Amable Char-trand, sr., a portion of whose heirs had conveyed to the petitioner. The defendants were the other heirs or their representatives. Amable Chartrand, sr., died, leaving twelve children. Noel Chartrand was one of the sons, and Ursule Chartrand one of the daughters.

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

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

Louis Court of Common Pleas. Neuer commenced a suit by attachment against Radford and Mallory, in which, on the 11th day of April, 1850, John O’Eallon was summoned as garnishee. The allegations filed by the plaintiff stated that the garnishee, as treasurer of the Illinois coal company, at the time he was summoned, had in his hands a sum of money which the said company upon a settlement with the defendants, who were contractors, had set apart and directed to be paid to them.

<p> Error to St. Louis Circuit Court. </p> <p>The court erred in adjudging all the costs of the two suits consolidated against Eilers.</p>

Louis Court of Common Pleas. Briggs sued Greorge 0. Robbins by attachment, and Emanuel Block was summoned as garnishee. The name of Block was not inserted in the writ to the sheriff, as a party to be summoned as garnishee. After the lapse o'f the first week of the return term, no allegations and interrogatories having been filed, Block moved to be discharged. Pending this motion, allegations and interrogatories were allowed to be filed, and the motion was overruled.

Louis Court of Common Pleas. This was an action of ejectment, begun by the respondents in 1842, to recover lot number forty-one of the subdivisons of the commons of Carondelet, south of the River Des Peres.

Louis Circuit Court. 1. The court below erred in admitting in evidence the deed of trust from J. E. Erauklin to J. L. Franklin’s trustee, and the transfer of the same to Weld. They had no relevancy to the issue to be tried, which was, whether the deeds from Day and Weld to Eitch were in 'fraud of the creditors of J. E. Franklin. 2. The court below erred in its finding of the facts, upon the evidence. The case •is properly saved to have that finding reviewed in this court. 3.

Louis Circuit Court. . 1. The title of the plaintiff to all those parts of section 16, township 44, not disposed of by the government before March 6, 1820, was perfect by the act of congress of that date, and the ordinance of the-Missouri cenvention, dated July 19, 1820, and has uniformly so been considered by our legislature and so adjudged by this court. (See act of January 17,1831.) R. C. 1835, p. 562. 8 Mo. Rep. 477. ib. 640. 3 ib. 310. 13 ib. 112. ib. 139.

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

<p>1. The indictment charged that the defendant assaulted “ Silas Melville,w with intent to kill. The proof was that the name of the person assaulted was “ Melvin.” Held, this was such a variance as that the court should have directed an acquittal.</p>

Louis Criminal Court. 1. Under our salvage law, and on general principles, the taking of the safe by the defendants from the river, was not only lawful, but a duty. R. C. 1845, p. 984, sec. 1, tit. “ Salvage. The doing of this act was open and notorious, in broad day-light, and therefore unattended by any of those badges which are characteristic of a felonious intent. 2.

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

Louis Criminal Court. The State utterly failed to show by legal proof the name of the deceased, as alleged in the indictment, and for that reason the verdict should have been for the defendant. The court erred in refusing to declare the law on that subject. Wharton’s Am. Crim. Law, 156, 157. 3 Sumner, 12. 1 McLean, 429.

Information in the nature of quo warranto. Tbe information stated that, in accordance with the provisions' of an act entitled “ an act to provide for electing a public printer,” approved March 24th, 1845, John G. Tredway, the relator, was, by the governor, on the 9th day of May, 1853, appointed and commissioned public printer of the state of Missouri, and had given bond and qualified according to law ; and that the respondent, James Lusk, usurped the office, and refused to…

This was an action of trespass for throwing down fences and destroying trees on plaintiff’s land.

•Appeal from Boone Circuit Court. This was an action for damages to tbe goods of tbe plaintiff in tbe cellar of his store, alleged to have been caused by tbe obstruction of a sewer by the servants of tbe defendant.

This was a suit commenced in the Audrain Circuit Court, on two bonds for the direct payment of the sum of $350 each, by William House, the obligee, against William Marshall, the ob-ligor.

jError to Saline- Circuit Court. 1. No demand was necessary. The rule is, that no demand is necessary where the defendant’s possession or detainer is'wrongful as against the party suing, or, where there is an assertion of right hostile to the plaintiff’s claim. Jones v. Henry & Boggs, 3 Litt. 50. Boggess v. Boggess, 6 Munf.. 486. 2 Haywood (N. C.) 136. Ib. 186. Selwyn’s N. P., tit. “Detinue, Replevin.”-1 Bibb, 189.

This was a petition in the nature of a bill of interpleader, filed by Joseph Freeland, administrator of the estate of Jacob Freeland, against Robert J. Wilson and Martha Ann Wilson, who claimed to be two of the distributees of said estate.

1. The petition does not show that the defendant promised to marry the plaintiff. The promise must be mutual. 6 Bacon’s Ab. (Bouvier’s ed.) 461. 2 Ghitty’s PL 322 & notes. 2. An action for seduction cannot bo maintained in the name of the party seduced, but only in the name of some one standing in the relation of master or parent. 3.

This was a suit begun by Margaret Stone, tbe plaintiff in •error, in 1850, against Jesse E. Stone, Rebecca J. Stone-, Margaret D. Stone and William S. Stone, defendants in error, to recover her dower in certain slaves wbicb bad belonged to her deceased husband, John C. Stone, in bis life-time.

This was a petition filed by John S. Phelps, for an injunction of a sale of his land under execution.

This was an action commenced by Wetzell, who was public administrator, and administrator of the estate of Thomas Bowles, deceased, to recover damages caused by the wrongful seizure and sale under execution of slaves belonging to the said estate. The petition stated that, on or about October 1, 1844, one Hudspeth, sheriff of Dade county, seized the slaves and was about to sell them under an execution in favor of T. & 0.

<p>1. An award of arbitrators is properly vacated where it appears that they heard the evidence before they were sworn.</p>

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

<p>1. The petition stated a case of trover and conversion. The proof was, that the goods were lost by the negligence of the defendant. Held, the plaintiff could not recover, without amending his petition.</p>

Murray sued Oliver by attachment, on a bond for two hundred and fifty dollars, executed by T. P. Allen, Francis S. Smith and tbe defendant, and also on a note for eighteen dollars and sixty-three cents, made by tbe defendant.

dlppeal from Callaway Circuit Court. Tbe county court bad jurisdiction of tbe cause. (R. C. 1845, tit. *• Courts,” p. 331, sec. 13.) No letters of administration can be granted on tbe estate of a minor. (R. C. 1845, tit. “ Guardians and Curators,” section 27.) Tbe statutes do not give county ty courts jurisdiction of proceedings against guardians upon demands against the estates of their deceased wards.

for plaintiff in error, insisted that the Circuit Court had no power to affirm the judgment of the justice, without a trial de novo. They referred to sec. 13 of the 8th article of the act establishing Justices’ Courts, R. C. p. 670, and section 42 of art. 3 of the act concerning Practice at Law, R. C. 815, and cited Cates & Gay y. JHeerd, 5 Mo. Rep. 124.

Jlppeal from St. Clair Circuit Court. The opinion of the court contains a sufficient statement of facts.

This was a suit begun by E. A. & S. R. Filley, tbe appellants, against Lawson A. Talbott, tbe respondent, before a justice of tbe peace of Clay county, upon a note for eighty - eigbt dollars and seventy-five cents, dated October 11th, 1850, and payable two months after date. Tbe plaintiffs recovered judgment before the justice for twenty dollars and four cents and their costs, from which they appealed to the Circuit Court.

The defendant was indicted, and convicted of murder in the first degree, for the killing of one Henry Knowl. At the trial, Uriah Carroll, a witness for the State, testified that he was working in the field of defendant, his uncle, on the day Knowl received the injuries of which he died. When he returned home to his uncle’s house at sundown, he found the prisoner and Knowl there, both considerably intoxicated.

<p>1. An indictment which charged the defendant with permitting a gaming device to he “set up and used,” was held not had for duplicity.</p>

<p>X. The illegal manner of summoning a grand jury is no ground for a plea in abatement to an indictment, nor would it, under our statute, be any ground for a challenge to the array.</p>

Jippeal from, Dent Circuit Court. Gardenhire, (attorney general,) for the State. 1. A defendant cannot be discharged for any failure of the clerk in making entries, after the filing of an indictment. 2. The Circuit Court had power to order entries of proceedings had at a previous term to be made nunc pro tunc. Hyde v. Curlings et at., 10 Mo. Rep. 859.

1. 'No sufficient foundation was laid for the admission of the threats of Copeland. There was no proof of a previous conspiracy or confederacy to perpetrate the outrage upon Willard. 3 Chitty’s Criminal Law, p. 1143 and authorities referred to. 1 Phillips’ Ev. 88. 2 Starkie’s Ev. 141. Commonwealth v. Crowninshield, 10 Pick. 497. 1 Greenleaf’s Ev. §110, §111. 2 Peters, 364. 2. The first instruction given for the State is erroneous.

Jiff tal-from, St. Clair Circuit Court. 1. The record having been filed in the St. Clair Circut Court on the first day of the term, the cause ought not to have been tried until the next succeeding term. The determination of a motion to quash is a trial, within the meaning of the rule of the Circuit Court. 2. A motion to quash will not lie in a case of felony. A defect in the indictment, in such a case, can only be taken advantage of by demurrer. 1 Chitty’s Crim.

jError to St. Charles Circuit Court. The land in dispute was inhabited, cultivated and possessed by John, Nicholas and l’heresé St. André, in common, prior to December 20th, 1808. By the Spanish law, Theresé was possessed of an undivided moiety of the interest of her husband, Nicholas. This right was confirmed to her and to her vendee by the act of June 18th, 1812. The defendants can claim nothing under the deed of Cerré.

.Error to Marion - Circuit Court. This was an action in the nature of ejectment, brought by James J. Hite .and Harriet Jane, his wife, to recover the undivided half of a lot in the town of Palmyra. The plaintiffs claim title under Harrison Marders, who died in 1833, holding the lot as tenant in common .with Abijah 0. Abernathy. Th§ plaintiff, Harriet Jane, was the daughter, and, at the time this suit was brought, sole surviving heir of Marders.

vQppeal from Jefferson Circuit Court. This was a petition for the specific execution of a contract to convey land. John W. Honey, in his life-time, sold to E. T. Honey, the appellant, his interest in the real estate of their father (being one-fifth) in part payment of a debt. E. T. Honey entered into possession of the land after the purchase. Before a deed was executed, John VY. Honey died, and this proceeding is against his heirs.

Jtppeal from Jefferson Circuit Court. This suit was commenced under the practice act of 1849, by Florence Spitts against Sarah and Solomon Wells, who were minors.

<p>1. Judgment reversed for an insufficient finding of the facts.</p>

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

<p>1. A trial before the court without.a jury; a general finding for the defendant; no objection to any evidence and no point of law raised. Judgment affirmed.</p> <p>2. No -finding of facts necessary on the trial of a cause appealed from a justice.</p>

cftppeal from Jefferson Circuit Court. On the 23d of May, this cause having been called for trial in the court below, was continued at the instance of the plaintiff, on account of the absence of witnesses. On the next day, the plaintiff’s witnesses having arrived, he moved to have the continuance set aside, stating that he had notified the defendant of his intention to make the motion.

<p> •Appeal from St. Francois Circuit Court. </p>

<p>1. Under the new practice, where a plaintiff or defendant dies, the suit can he continued in the name of the representative in interest, only upon the voluntary appearance of the adverse original party, or after the service upon such party of a scire facias. The sixteenth section of article five of the practice act of 1845, is not repealed hy the new code.</p>

This was a proceeding instituted in the Circuit Court of Eranklin county by Erancis G. Roberts, James R. Wilson and Mary Jane Wilson, his wife, against Isaac Stoner, John Q. Dickenson, Alexander Chambers and A. W. Jeffries.

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

<p> •Appeal from Perry Circuit Court. </p> <p>This was a suit for partition, and the dispute was, as to the extent of the interests of some of the parties. The heirs of C. C. Valle, by virtue of a deed from Robert T. Brown and wife to their father, executed in 1831, claimed an interest of seven hundred arpens, which was also claimed by James Clemens, under Brown. The facts are sufficiently stated in the opinion of the court.</p> <p>1. The deed from Robert T. Brown and wife to Charles 0. Valle, in 1831, for seven hundred arpens, was effectual to pass the title subsequently acquired by Brown. 2. Brown, and Clemens, his privy in estate, are estopped by his acts and declarations. He stood by and assented to the survey made in 1845, and made frequent declarations that the heirs of C. C. Valle were entitled to the quantity they claim. Taylor & Mason y. Zepp, 14 Mo. Rep. 482.</p> <p>The case of Bogy v. Shoab is against the position assumed by the appellants, but this case differs from that. 1. An estate was conveyed by the deed. It is not the case of a man who has no title conveying and afterwards acquiring. This latter case is the only one contemplated by the statute. 2. The grantors had a good title. The acknowledgment of the wife may not be good to pass her interest, but beyond all doubt she then had the title.</p>

'Appeal from St. Louis Circuit Court. This was a petition in tbe nature of a bill in equity, filed against the heirs of Auguste Ohouteau, by Yictoire Charle-ville, claiming to be the daughter and sole surviving heir of Yictoire Richelet Yerdon. The children of Yictoire Charle-ville, claiming under her, were subsequently made parties plaintiff.

Louis Law Commissioner’s Court. The court erred in refusing to declare the law as to the effect of an usage of trade. 1. Smith’s L. C. 307, 414. Chitty on Contracts, 21.

This was an action to recover the price of a share of stock subscribed in a telegraph line from St. Louis to St. Joseph via Union. The petition stated that certain stipulations and conditions were annexed to tbe subscription, all of wbicb, thirteen in number, were set out in an exhibit annexed to the petition. The 10th and 11th stipulations were as follows : “ 10.

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

tdppeal from Hannibal Court of Common Pleas. Tbe act of 1847 did not repeal tbe act of 1845, but merely added a condition, which bad to be complied with before tbe tavern keeper could sell liquors. Tbe repeal of tbe act of 1847, in 1849, left tbe law as it was in 1845, without tbe condition imposed by the act of 1847.

«Appeal from Ste. Genevieve Circuit Court, This was an action o£ ejectment and partition, brought by Joseph Moreau and others, heirs of Pascal Detchemendy and Theresé, his wife, to recover an interest in a tract of land containing 10,256 arpens, embraced in three adjoining concessions and confirmations.

Louis Court of Common Pleas. This was an action in the nature of ejectment, begun by the plaintiffs in error in 1850, to recover a lot of ground in the city of St. Louis. The cause was submitted below upon an agreed case. The titles of the respective parties are stated in the opinion of the court.

Louis Court of Common Pleas. John D. Daggett, on the 20th of January, 1852, was summoned as garnishee on an execution in favor of Colcord & Hall against Solomon P. Sublett. At the return term, the plaintiffs in the execution filed allegations and interrogatories.

Louis Court of Common Pleas. This was an action to recover a lot in the St. Louis city common.

Louis Law Commissioner’s Court. 1. Neither an agreement to pay rent, nor an express contract with the tenant, nor reservation of rent need be alleged or proved; an understanding will be implied, and an agreement to pay what the premises are fairly worth understood, wherever a permissive holding is established. Taylor on Landlord and Tenant, 294, 295. O’Fallon, adm’r, v. Eoismenue, § Mo. Rep. 286. 2.

Louis Court of Common Pleas. The act establishing the St. Louis Land Court did not take away the jurisdiction of the Court of Common Pleas and Circuit Court, in cases affecting real estate, until the Land Court was organized by the election of judge and clerk.

•Appeal from St. Louis Circuit Court. This was a petition filed by Margaret Thomas, for dower in certain land, of which her husband, in his life-time and during, the marriage, had been seized. The defendant held under a conveyance executed by Martin Thomas, and his wife, the plaintiff, on the 14th of December, 1830, and acknowledged on the 28th of the same month.

Lords Court of Common Pleas. This was a civil action commenced by Edwin Tanner against Emily Stine, in 1850, the object of which was to obtain the legal title to a lot in the common… Held: are left unfilled. The date of the execution, acknowledgment and recording of the deed is given, and also the time of sale, stating the day and between what hours of the- day the sale took place ; so that there is no uncertainty as to when the sale was made, upon the face of the deed.

Louis Court of Common Pleas. The court below erred in sustaining the demurrer. 1. The plaintiff’s petition stated that the defendant was a boat used in navigating the waters of this state, and this was admitted by the demurrer. 2. The contract was to be completed at St. Louis. Before the boat reached Cairo, the plaintiff, with the consent of the officers of the boat, extended his passage to St. Louis. This was not a new contract, but a modification of the original one.

flppeal from St. Louis Court of Common Pleas. I, The title of the plaintiffs is perfect, as against the goyernment, and superior to all other titles, unless the right of the city to the commons be the better title. II. The locality of the plaintiffs’ land is certain, and their actual possession of it commenced in the year 1800. III.

The petitioner stated that he was illegally imprisoned in the jail of St. Louis county, under the pretended authority of a certain commitment issued by a notary public of said county. A copy of the commitment was annexed to the petition, and it was agreed that the legality of the imprisonment should be considered upon the application, in the same manner as if a writ had been issued to the jailor and returned.

<p>1. It is not necessary for the court to find the facts upon an enquiry of damages after a judgment hy default.</p>